Ask The Lawyer

By Debra Roth

Be calm, have perspective concerning EEO complaint

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No manager wants to receive a phone call from an equal employment opportunity counselor.

The call means a subordinate has accused the manager of illegal discrimination, a serious allegation that could, if proved, result in disciplinary action.

Most managers will respond to news that the EEO process has started against them with a strong sense of indignation, outrage, denial, or perhaps all of these. These reactions are normal, but acting on them is the wrong thing to do. Whatever you say, except to your lawyer, can and might be repeated and used against you. A comment such as, “That ingrate, after all I’ve done for him, how could he do this to me?” could later come out in testimony at an Equal Employment Opportunity Commission or Merit Systems Protections Board hearing and could be considered evidence to support a retaliatory motive.

Some perspective is in order. According to EEOC’s annual reports from the last several years, the 20,000 or so complaints result in only about 600 findings of discrimination. That’s about 3 percent. Another 20 percent are settled.

While this data indicates that the government needs an EEO system for its employees, it also means the manager’s odds are pretty good at surviving the EEO process.

Another factor to consider is the motivation of a large number of EEO complainants. An honest EEO professional will acknowledge that many EEO complaints are filed without evidence or a belief that illegal discrimination has occurred. The complaints are filed in the EEO system because the employee is concerned his grievance will not be heard anywhere else.

A real danger for the manager is the lengthy and sometimes mysteriously silent EEO process as is it winds its way from counseling to mediation to investigation to discovery and deposition and then finally to a hearing and a decision.

During this time, the subordinate’s EEO complaint is hanging over the manager’s head, creating negative vibes directed at the manager. The longer it goes on, the worse it can be.

With this perspective, what should a manager do? After a period of calm reflection to overcome those initial negative reflexes, think about three activities to at least survive, and usually thrive, in response to a subordinate’s complaint:

Prepare. When the counselor calls, find out as much as you can about the complaint. Then gather your thoughts and evidence. Think who can support your justified rationale for how the employee was treated. Coordinate with employee relations or any other office that may provide knowledge or support for your side.

Tell your higher-ups about the informal EEO complaint. Higher management does not like surprises and would rather hear about the complaint from you than from another source. Think strategically and carefully about what you tell the EEO counselor, but most important, do not lie, exaggerate, obfuscate or withhold information.

Document. If you do not already have documentation related to the complaint, the call from the counselor should make documentation a priority. Any form of documentation will do. Think about the simple task of writing yourself an e-mail recording the relevant facts. The relatively short, 45-day limit for the initiation of the EEO process is an opportunity for the manager. It is also important to document fully any meeting or phone conversation with the counselor.

Listen. Try to figure out what is bothering the employee. Assess your vulnerability. You may want to settle early. Listening to your unhappy employee can also help you prepare and document. And it may go a long way toward producing a better workplace.

The call from the EEO counselor is not the end of the world. It is a bump in the road. Slowing down to assess and navigate that bump is the best response.

Comments

  1. A. Michels Says:
    March 15th, 2011 at 8:18 am

    After reading the commentary from William R. Dougan lamenting the lack of cooperation from supervisors with the federal government and then reading your statistics about the number of EEO complaints filed,vs. settled, etc. it is no wonder that there is continued distrust between union and supervision. Perhaps Mr. Dougan could influence those in his organization to avoid filing frivolous EEO complaints as a “good will” gesture to encourage trust and cooperation. It is impossible for a supervisor to trust a union steward when said union steward has filed numerous erroneous complaints in an effort to gain power and intimidate his/her supervisor – which is probably coached by said union.