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Management Directive 110

This attachment can be used to develop or refine counseling techniques when traditional counseling is selected. Below are suggested methods to follow in each step of the counseling process.

EEO counseling consists of the following steps:

  1. Preparing for the effort
  2. Holding discussions
  3. Assessing the situation
  4. Determining appropriate resolution technique(s)
  5. Using informal resolution technique(s)

In reviewing each step, the EEO Counselor must remember that each informal resolution situation will be different and each EEO Counselor will have his/her own style. There will probably be times when the EEO Counselor will need to make modifications to fit the situation.

  1. Meeting with the Aggrieved Person
    1. Initial Actions
      1. Upon contact by an aggrieved person, the EEO Counselor should record the date and set an appointment for the initial counseling session to discuss the dispute. Before the initial meeting, the EEO Counselor should advise the aggrieved person of his/her right to be accompanied, advised, and represented by a representative at any stage in the complaint process, including the counseling stage, and explain the reasonable accommodation(s) available throughout the EEO process.

        Also, the EEO Counselor must advise the aggrieved person that the aggrieved person will remain anonymous during counseling unless s/he chooses not to remain anonymous. 29 C.F.R. § 1614.105(g).

      2. The EEO Counselor should begin the initial meeting with the aggrieved person by explaining the role of the EEO Counselor. The EEO Counselor should then give him/her an opportunity to explain the problem. The EEO Counselor should create an atmosphere which is open to good communication and dialogue.
      3. The EEO Counselor should listen attentively in order to get an understanding of the issues involved (the facts as the aggrieved person sees them and the action(s) alleged to be discriminatory). Once the aggrieved person has had the opportunity to relate the dispute fully, the EEO Counselor will be in a better position to define the claims(s) and basis(es) involved, determine if the problem comes under the purview of the anti-discrimination laws, and determine if special procedures apply.
      4. The EEO Counselor should find out if the aggrieved person tried to resolve the problem or brought the problem to the agency's attention before seeking counseling and, if so, how. Part of the problem might be that s/he did not use the appropriate mechanisms to handle the problem prior to seeking counseling and, if properly handled, the problem may be easily resolved.
      5. The EEO Counselor should ask the aggrieved person whether s/he is willing to meet with agency officials.
      6. If the dispute is to be handled under Part 1614, the EEO Counselor should provide the aggrieved person with an overview of informal counseling and the discrimination complaint process under Part 1614, including required notifications and time frames, and answer any questions s/he may have about counseling and the complaint process.
      7. If a dispute involves employment discrimination and the aggrieved person chooses to have his/her case processed by the agency, the EEO Counselor must provide counseling, regardless of whether the EEO Counselor believes the case has merit.
    2. Disputes Not Involving Discrimination

      After listening to and asking questions of the aggrieved person, it may become apparent that s/he is not alleging discrimination on one or more of the bases protected by the anti-discrimination laws. For example, a person may allege that s/he was the target of reprisal for union activities. In the absence of facts to show that the union activities are related to participation in protected EEO activities or related to opposing discriminatory practices, the EEO Counselor can offer other alternatives for redress.

    3. Disputes Involving Prohibited Discrimination

      When the dispute involves an allegation of discrimination, the EEO Counselor should proceed with the initial counseling session and do the following:

      1. Determine whether special procedures apply (i.e., mixed case, negotiated grievance procedure, or age). Also, advise the aggrieved individual how the agency's EEO alternative dispute resolution (ADR) process works in counseling and of the aggrieved person's option to choose EEO ADR during the counseling stage of the process where the agency agrees to offer EEO ADR in the particular case.
      2. Find out as many specifics as possible concerning the individual's reasons for believing discrimination has occurred.
      3. Ask the aggrieved person what it would take, in his/her view, to resolve the problem. For example: The aggrieved person alleges race discrimination in an agency's selection of trainees for a computer training program. The EEO Counselor should determine what the aggrieved person will accept to resolve the problem. Suppose the aggrieved person will accept being placed at the top of the agency's waiting list for the next available opening. The EEO Counselor may be able to resolve this dispute by presenting the offer to agency officials as a first step. If the agency agrees, the EEO Counselor has avoided the need to formulate a resolution strategy.

        Learning early on exactly what it is that the aggrieved person is seeking may well provide the basis for a prompt resolution and save everyone time.

      4. Make sure the aggrieved person understands that s/he cannot be forced to agree to any proposed solutions or to reach an agreement with the agency and that s/he may file a formal complaint.
      5. Conclude the initial EEO counseling session by making sure that the procedural requirements of 29 C.F.R. Part 1614 were followed and that enough information was obtained to attempt resolution.
  2. Meeting with Agency Officials
    1. Explain the aggrieved person's allegations and summarize the reasons or facts s/he gave for believing there has been discrimination. The aggrieved person's name can be used only if anonymity has been waived in writing.
    2. Explain or answer any questions about EEO counseling and the federal complaint process. Emphasize that the EEO Counselor's role is to attempt to resolve a dispute. If counseling is successful and resolution is reached, then the need to file a formal complaint is avoided.
    3. Give the agency an opportunity to present its position on the matters raised by the aggrieved person and ask agency officials to suggest ways the problem might be resolved.
    4. Try to get a sense of the relationship between the aggrieved person and the responding agency official (assuming the aggrieved person did not request anonymity). Is the relationship hostile, perhaps because of past dealings? Is the agency official interested in meeting with the aggrieved person?
    5. Make sure that agency officials understand that the agency cannot be forced to enter into an agreement as a result of EEO counseling.
  3. Considering Factors in Situation

    The EEO Counselor's approach to a given situation will depend on several factors, including the following:

    1. Nature of the alleged discriminatory acts and characteristics of the dispute between the parties.
    2. Relationship between the aggrieved person and the agency.
    3. Whether the EEO Counselor must gather facts beyond those provided by the aggrieved person and the agency.
    4. Acceptance by the aggrieved person and the agency of various resolution techniques.
    5. The EEO Counselor's willingness to participate in various resolution techniques.
  4. Conducting the Inquiry
    1. Focus on the Issue(s) and Basis(es)

      The EEO Counselor may be required to interview witnesses and review agency records. An inquiry into an EEO dispute begins when the EEO Counselor attempts to gather information following the initial meeting with the aggrieved person. Upon completion of this initial meeting with the aggrieved person, the claim(s) raised should be clearly defined and the basis(es), i.e., race, color, sex (including equal pay, pregnancy, transgender, and sex stereotypes), religion, national origin, age, reprisal, genetic information, and/or disability, identified. The EEO Counselor should keep in mind that the aggrieved person is best able to assist in defining the issue(s) since s/he is an involved party. The EEO Counselor should not conclude an initial interview with the aggrieved party without a clear understanding of the issue(s) and basis(es).

      The direction the inquiry will take depends upon the EEO Counselor's understanding of the issue(s) and basis(es). If the issue(s) involves a personnel action, it will be necessary to identify the action with as much specificity as possible. For example, if the aggrieved person alleges discrimination in a promotion action, the EEO Counselor must at least determine the position applied for, and whether the aggrieved person was qualified, was on the list of best qualified candidates, was interviewed, and whether a selection was made. This information will help to focus the inquiry on the specific portion of the personnel action at issue. The EEO Counselor must include dates to ensure that the dispute was raised in a timely manner. For those issues that involve actions other than personnel actions documented by an SF-50, the data gathering approach is the same, but gathering information can be more difficult.

    2. Data Gathering from Witnesses and Agency Records
      1. Once the claims(s) and basis(es) are defined, the EEO Counselor will need to determine if it is necessary to gather information from sources other than the aggrieved person and agency representative in order to attempt resolution. Potential sources of information could include witnesses and written documentation or records.

        If the EEO Counselor determines that witness interviews are necessary, s/he should attempt to interview witnesses who have direct knowledge of a particular situation. The EEO Counselor should limit witness interviews to those persons who can provide information that will help the EEO Counselor better understand the dispute so that resolution can be attempted. Sometimes witness interviews will be the only source of information other than information obtained from the aggrieved person and the agency. Such disputes would include allegations of harassment, either sexual or otherwise, or situations where the issue raised is one of inappropriate conduct or treatment based on a prohibited reason.

      2. Early in the process, the EEO Counselor must determine what documents control the action taken; i.e., whether there is a written agency procedure that must be followed in certain situations. For example, if the issue involves a promotion action, the EEO Counselor should decide if it is necessary to review the applicable promotion plan and, if so, determine where the plan is maintained. The EEO Counselor may be able to obtain needed information from official personnel folders, supervisors' working files, or wherever the personnel action is maintained, such as a promotion folder. By making inquiries, the EEO Counselor will soon learn where such documents are kept and who maintains the records.

        When looking at individual records, the EEO Counselor should keep in mind that his/her role is to achieve informal resolution at the lowest possible level, so the number of records reviewed should be kept to a minimum. Only records of the aggrieved person and of those who allegedly received different, more favorable treatment should be examined in an effort to achieve informal resolution.

        The EEO Counselor's first contact may be at the personnel office, but the EEO Counselor may determine other sources for obtaining needed documents.

        For situations which EEO Counselors encounter often, the following types of issues will require review of certain records:

        1. (1) Promotion - The promotion folder should include the vacancy announcement, job description, ranking/rating factors, and SF- 171 or applications of at least the aggrieved person and the selectee. The EEO Counselor should notify the personnel office that an EEO inquiry was made concerning a promotion action. The EEO Counselor should request that documents relating to the promotion action, which might ordinarily be destroyed, be retained while the inquiry is pending.
        2. (2) Time and Attendance - Agency regulations/orders on time and attendance, time and attendance records of the aggrieved person and person(s) the aggrieved person is comparing himself/herself to, and how each is treated.
        3. (3) Training - Agency procedures for requesting and recommending training, any forms required, and training approved or denied with reason(s).
        4. (4) Appraisal/Rating - Agency regulations/orders on system imple­mentation and administration, elements and standards, perfor­mance requirements, rating of the aggrieved person, and ratings prepared by same rating and/or reviewing official of similarly situated employees.
      3. In reviewing documentation, the EEO Counselor should copy only documents needed in the discussions that will follow the initial inquiry. Notes should be kept, but the identity of comparators should not be revealed to the aggrieved person. Review of documents should be restricted to those that relate to the issue(s) raised by the aggrieved person and are necessary to resolve the concerns informally at the lowest possible level.

        EEO counseling will often involve the use of various techniques to bring about early resolution. For example, it may include:

        1. (1) Holding separate meetings, followed by joint meetings, and then telephone contact to work out details of an agreement;
        2. (2) Holding a joint meeting to set forth the facts as both sides see them, followed by separate meetings with the parties in which the various possibilities for resolution are explored; or
        3. (3) Conducting a conference call or separate telephone calls to the parties during which the dispute is resolved. Care should be taken to protect anonymity unless waived.
  5. Developing a Resolution Strategy for 30-Day Counseling Period
    1. Joint Meetings (An aggrieved person must agree to a joint meeting)
      1. Advantages:
        1. (1) Gives the aggrieved person and the agency an opportunity to present the facts as each sees them and to clarify points of confusion or misunderstanding.
        2. (2) Gives the parties an opportunity to explore directly with each other the means for resolving issues underlying the problems.
        3. (3) Helps the parties establish a more constructive working relation­ship by getting a better understanding of each other's concerns.
        4. (4) Enables the parties to "shake hands" on any agreements reached and to work together to put them in writing.
        5. (5) Allows the EEO Counselor better control of the process, making sure that the parties treat each other as equals and that threats or coercion are not used.
      2. Disadvantages:
        1. (1) Risks a blow-up, a hardening of positions, and increased antagonism.
        2. (2) May require the parties to call a recess to explore changes in position with others (e.g., counsel).
        3. (3) May be difficult to schedule.
        4. (4) Can be costly when the parties are in different locations.
      3. The EEO Counselor Should Use This Approach When:
        1. (1) The parties' positions are based on different facts or different perceptions of the same facts.
        2. (2) The parties have not had an opportunity to talk with each other or would like a way to reopen discussions.
        3. (3) The EEO Counselor is confident that s/he will be able to control the joint meeting.
    2. Separate Meetings
      1. Advantages:
        1. (1) Allows the EEO Counselor to learn more about the parties' specific concerns and priorities.
        2. (2) Allows the EEO Counselor to explore alternatives.
        3. (3) Allows the parties to ask questions they do not want to ask in front of the other party.
        4. (4) Prevents the possibility of intimidation.
        5. (5) May be easier to schedule than a joint meeting.
      2. Disadvantages:
        1. (1) May lead the parties to wonder what the EEO Counselor is saying to the other side.
        2. (2) Unless the resolution reached through separate meetings is re-stated in a joint meeting or through a conference call, the parties do not have the opportunity to talk with each other to make sure each has the same interpretation of the agreement. It is easier for the parties to blame the EEO Counselor for any future misunderstanding about the resolution.
        3. (3) May put the EEO Counselor in the position of having to pass messages back and forth between parties. Misunderstanding of the messages may occur in their transmission.
      3. The EEO Counselor Should Use This Approach When:
        1. (1) The parties' hostility and antagonism can get in the way of substantive discussions.
        2. (2) The EEO Counselor needs a better understanding of issues and priorities to be able to control a subsequent joint meeting.
        3. (3) The EEO Counselor needs to help one or both parties be realistic about possible solutions.
        4. (4) Scheduling is a problem.
        5. (5) The parties do not have a current relationship.
        6. (6) One party is afraid to meet with the other.
    3. Telephone Communication
      1. Advantages:
        1. (1) May be easier to schedule and quicker than joint meetings.
        2. (2) Less costly.
        3. (3) For advantages of conference calls, refer to advantages of joint meetings.
        4. (4) For advantages of separate calls, refer to advantages of separate meetings.
      2. Disadvantages:
        1. (1) Impersonal communication resulting from the inability to see how the person is responding to what is said. Harder to gain the rapport needed to explore issues and alternatives.
        2. (2) For disadvantages of conference calls, refer to disadvantages of joint meetings. Note: It may be easier to hang up the telephone than leave a meeting chaired by an EEO Counselor.
        3. (3) For disadvantages of separate calls, refer to disadvantages of separate meetings.
      3. The EEO Counselor Should Use This Approach When:
        1. (1) The parties are in different locales and are not logistically able to meet face to face.
        2. (2) The issues are comparatively easy to deal with, such as those based on a misunderstanding or incorrect information.
        3. (3) The EEO Counselor needs more information to determine if counseling is productive, and scheduling a meeting for this purpose is too time-consuming.
    4. Attempting Resolution

      When the EEO Counselor has a good grasp of the issues involved and has decided on which EEO counseling technique to use, s/he is ready to attempt resolution. Resolution of an EEO problem means that the aggrieved person and the agency come to terms with a problem and agree on a solution. The EEO Counselor should generally concentrate on resolving individual cases independently; but, when appropriate, the EEO Counselor should ask for assistance from the EEO Director in reaching a solution or correcting a problem. When asking the EEO Director for help, the EEO Counselor should relate what s/he has learned in the inquiry (using the aggrieved person's name only if s/he has given permission) and be prepared to recommend specific action.

      There is no set formula for a EEO Counselor to follow in attempting a resolution using the techniques described. The EEO Counselor can attempt resolution by talking with the parties separately or together. The EEO Counselor can talk with them together only if the aggrieved person has given permission; otherwise, they must be spoken with separately.

      The following subsections highlight barriers faced when attempting resolution and provide guidance on how to attempt resolution using the EEO counseling techniques of joint meetings, separate meetings, and telephone communication.

    5. Obstacles to Informal Resolution

      In order to resolve an EEO dispute, the agency and the aggrieved person must agree on a solution. However, only the agency has the authority to resolve an EEO dispute. Like most situations involving two parties, the EEO Counselor can expect obstacles to resolution of EEO disputes. These obstacles can be put up by both parties. The challenge is to overcome these obstacles and work out a solution.

      Sometimes obstacles can be overcome by bringing the parties together and having them candidly discuss their attitude toward working out a solution. Other times, obstacles can be lessened by helping the parties explore possible outcomes if the dispute is escalated to the formal complaint level. However, the EEO Counselor must recognize that not all obstacles can be overcome and attempts at resolution should end when it is apparent that the parties are unable to come to an agreement.

      1. Some agency obstacles are listed below:
        1. (1) "There was no discrimination so nothing should be done."
        2. (2) "The decision at issue was correctly made, procedures were correct, and nothing should be done for the aggrieved person."
        3. (3) "Resolution will encourage frivolous complaints."
        4. (4) "Subordinates and supervisors will lose respect for a manager who settles rather than fights."
      2. Aggrieved persons may also impose obstacles to successful resolutions of problems. Such obstacles may include:
        1. (1) "Discrimination must be punished."
        2. (2) "My manager must be disciplined."
        3. (3) "My manager must apologize."
        4. (4) "No remedy is sufficient."
        5. (5) "The agency must pay punitive damages."[1]
  6. Attempting Resolution Using the Joint Meeting Technique

    This subsection outlines the steps and activities involved in arranging and conducting joint meetings. The EEO Counselor should make sure the aggrieved person has consented to joint meetings with the agency before arranging a joint meeting.

    1. Arranging a Joint EEO Counseling Session
      1. The EEO Counselor should select a location convenient for both parties.
      2. The EEO Counselor should arrange a date and time convenient to both parties, but as soon as possible.
      3. If there does not seem to be a mutually acceptable time for the parties to meet, consider the following questions:
        1. (1) Is there a suitable and feasible alternative to the joint meeting? If so, the EEO Counselor should use it.
        2. (2) Does the scheduling problem appear to be real, or does it appear to be a delaying tactic?
        3. (3) If the scheduling problem appears to be real, how do the parties feel about postponing the meeting? Would a request for an extension make resolution within 30 days impossible?
        4. (4) If the scheduling problem is more of a delaying tactic and if there is no suitable alternative to a joint meeting, the EEO Counselor should terminate counseling.
      4. The EEO Counselor should determine who will be attending the meeting and let all parties know who will be present.
      5. The EEO Counselor should let the parties know the way the meeting will be run and suggest ways the parties can prepare for the meeting. Each party should understand that the EEO Counselor chairs the meeting but will not take a position on the merits of either party's position or the merits of any proposed solutions made by the parties, and that the EEO Counselor will not make decisions for the parties.
      6. The EEO Counselor should explain that the purpose of the meeting is to provide each party with an opportunity to present the facts and problems as each sees them, to clarify the issues, to establish points of agreement and disagreement, and to explore the possibility of some form of voluntary resolution acceptable to both parties.
      7. The EEO Counselor should suggest that the parties review the facts of the case as they know them and think about what it would take to resolve the problem as they see it.
      8. The EEO Counselor should point out the confidentiality of discussions to both parties.
      9. If, at the last minute, one of the parties calls to cancel, the EEO Counselor should try to determine if the reason is legitimate. If it appears it is, the EEO Counselor should reschedule the meeting as quickly as possible. If rescheduling becomes a problem, an alternative to the joint meeting should be explored. If there is a question about the reason for cancellation or if a party cancels more than one meeting, the EEO Counselor should decide whether informal resolution efforts should be terminated.
    2. Conducting a Joint EEO Counseling Session

      The EEO Counselor should:

      1. Start the meeting on time.
      2. Make sure everyone at the table knows everyone else and the reason each person is there.
      3. Set the tone and establish ground rules. This is the time to restate the purpose of the meeting, the EEO Counselor's role, and the role and responsibility of the parties.
      4. Work with the parties toward resolution.
      5. Prepare to handle the unexpected.
        1. (1) If one party does not appear for the meeting, the EEO Counselor should find out why. Discuss the issues involved with the party who does appear. Try to get a sense of what it would take to resolve the dispute. See if the party is interested in continuing EEO counseling and is willing to reschedule the meeting.
        2. (2) If one of the parties is about to break off discussions and leave in a huff, the EEO Counselor should try to calm the parties down and do the following:
          1. - Help both parties save face by getting them to put aside emotions and address the problem.
          2. - Talk to the parties separately, if necessary.
          3. - Not dwell on the incident if discussions resume, but remind the parties that a resolution does not have to be achieved and that it is okay to agree to disagree and to end informal resolution. The EEO Counselor can explain to the parties that a decision to end informal resolution efforts should be a conscious, deliberate one, not one simply made in a moment of anger.
      6. If one of the parties accuses the EEO Counselor of bias and asks the EEO Counselor to leave, the EEO Counselor should leave provided the other party is willing to continue the meeting without the EEO Counselor. If the other party is not willing to continue, the meeting should be adjourned.
        1. (1) Later, if appropriate, the EEO Counselor can clarify what happened and try to regain acceptance.
        2. (2) Apologize for any misconceptions that might have been created.
        3. (3) Decide whether to terminate EEO counseling.
    3. Ending the Joint EEO Counseling Session

      A joint EEO counseling session can end in one of the following ways:

      1. With a resolution. The EEO Counselor should explain that s/he will draw up a written agreement to be signed by both parties.
      2. Without resolution but with an agreement to keep trying. The EEO Counselor should explain that she will arrange the next meeting. Keep in mind the requirement, pursuant to 29 C.F.R. § 1614.105(d), to conduct the final interview no later than the 30th day of initial contact by the aggrieved person, unless the aggrieved person and the EEO Director (or his delegate) agrees in writing to postpone the final interview. 29 C.F.R. § 1614.105(e).
      3. Without a resolution and with a decision to end EEO counseling. The EEO Counselor should explain to the aggrieved person that s/he will set up a final counseling session at which time the EEO Counselor will explain the next steps.

        The EEO Counselor should make sure that each party agrees on the way the meeting is ending.

  7. Attempting Resolution Using the Separate Meeting Technique
    1. What Should Be Done Up Front

      Separate EEO counseling sessions with each party can be used in place of or to supplement joint meetings. If separate meetings are to be used, the parties should know:

      1. That the EEO Counselor will be meeting separately with the parties.
      2. The purpose of the meetings.
      3. That what is said in the meetings is intended to be confidential.
      4. That the EEO Counselor will not serve as an advisor to the parties or comment directly on the substance of a proposal.
    2. Handling Special Situations

      The following paragraphs describe situations which may occur in separate meetings and suggest ways each situation might be handled.

      1. The agency concedes directly or indirectly that there may be some merit to what the aggrieved person sees as a problem.
        1. (1) The EEO Counselor can explore alternative solutions to the problem, for example, suggesting that the agency consult with appropriate officials to review the dispute and merits with a view towards possible resolution. The EEO Counselor should consult with his/her EEO Director to discuss the dispute before a suggestion is made to the agency to consult with legal counsel.
        2. (2) The EEO Counselor must be careful not to prejudge a case because a formal investigation may not find the situation to be as the parties described it.
        3. (3) The EEO Counselor may assist the agency and the aggrieved person in reaching an acceptable resolution of the dispute.
      2. The aggrieved person concedes directly or indirectly that there may be no merit to the allegations. (S/he thinks that there was unfair treatment, but it may not have been in violation of the anti-discrimination laws and regulations.) In such a case, the EEO Counselor can examine alternative solutions to the problem.
      3. The parties may ask the EEO Counselor for his/her opinion regarding the strength of the allegation. The EEO Counselor should:
        1. (1) Inform the parties that s/he cannot comment on the strength or weakness of a given situation.
        2. (2) Let the parties judge the strength and weakness of an allegation.
  8. Attempting Resolution Using Telephone Communication

    The general procedures outlined for joint and separate meetings also apply to telephone conference calls and separate telephone calls to each party. However, at the start of the conversation the EEO Counselor should:

    1. Ask if anyone else is on the line.
    2. Remind parties that recording the conversation is prohibited.

  9. [1]Under the Civil Rights Act of 1991, punitive damages are not available against a federal employer.