Management Directive 110
The Equal Employment Opportunity Commission (the Commission) enforces five federal laws that prohibit employment discrimination against applicants for federal employment, current federal employees, or former federal employees: Title VII of the Civil Rights Act of 1964, as amended (prohibiting discrimination on the basis of race, color, religion, sex, or national origin); the Equal Pay Act of 1963 (prohibiting agencies from paying different wages to men and women performing equal work in the same work place); the Age Discrimination in Employment Act of 1967, as amended (prohibiting discrimination against persons age 40 or older); Sections 501 and 505 of the Rehabilitation Act of 1973, as amended (prohibiting discrimination on the basis of disability); and Title II of the Genetic Information Nondiscrimination Act of 2008 (prohibiting discrimination based on genetic information).
The Commission provides leadership and guidance to federal agencies on all aspects of the federal government's equal employment opportunity program. The Commission ensures federal agency and department compliance with Commission regulations, provides technical assistance to federal agencies concerning EEO complaint adjudication, monitors and evaluates federal agencies' affirmative employment programs, develops and distributes federal sector educational materials and conducts training for stakeholders, provides guidance and assistance to our Administrative Judges who conduct hearings on EEO complaints, and adjudicates appeals from administrative decisions made by federal agencies on EEO complaints.
To carry out these duties, the Commission is authorized to issue rules, regulations, orders, and instructions governing the federal sector pursuant to Section 717(b) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(b); Section 15(b) of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633a(b); Section 505(a)(1) of the Rehabilitation Act of 1973, 29 U.S.C. § 794a(a)(1); the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff10; the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.; Section 303 of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act), Pub. L. No. 107-174; Executive Order 12067, 43 Fed. Reg. 28,967 (June 30, 1978); and Executive Order 11478, 34 Fed. Reg. 12,985 (Aug. 8, 1969), as amended by Executive Order 12106 (Dec. 28, 1978). It is pursuant to these authorities that the Commission issues this Management Directive.
In furtherance of its mission, to stop and remedy unlawful employment discrimination, the Commission will from time to time review agency programs and provide guidance regarding whether they are in compliance with the Commission's rules, regulations, orders, management directives, management bulletins, and any other instructions issued by the Commission. See 29 C.F.R. § 1614.102(e). It is the intent of the Commission to assist agencies in perfecting their EEO programs and to avoid or rectify any deficiencies in their programs that prevent them from reaching the statutory mandate of being model workplaces free from unlawful discrimination.
In this Management Directive the term
"Federal Agency" or "Agency," refers to military departments as defined in 5 U.S.C. § 102, executive agencies as defined in 5 U.S.C. § 105, the U.S. Postal Service, the Postal Regulatory Commission, the Tennessee Valley Authority, the National Oceanic and Atmospheric Administration Commissioned Corps, the Government Printing Office (except for complaints under the Rehabilitation Act), and the Smithsonian Institution. See 29 C.F.R. § 1614.103(b). The term also may include such other agencies, administrations, or bureaus (sub-components) as may be established within the above-listed that are given the authority to establish a separate unit tasked with implementing an agency program consistent with the requirements of 29 C.F.R. § 1614.102.
Federal agencies are required by statute not to engage in discrimination on the bases of race, color, religion, sex, national origin, age, disability, genetic information, or retaliation. They are also responsible for providing any reasonable accommodations throughout the EEO process for the aggrieved/complainant. A federal employee, former employee, or job applicant who believes s/he was discriminated against has a right to file a complaint with the agency's office responsible for its EEO programs. Federal agencies must offer pre-complaint counseling or EEO alternative dispute resolution (EEO ADR) to individuals who allege that they were discriminated against by the agency. If pre-complaint counseling or EEO ADR does not resolve the dispute(s), the individual can file a formal discrimination complaint with the agency's EEO office. The agency may dismiss the complaint for certain procedural reasons or conduct an investigation. At the conclusion of the investigation, the agency will issue a notice that provides the complainant with the option of either requesting a hearing before a Commission Administrative Judge or having the agency issue a final agency decision. The final agency action can be appealed to the Commission, or the complainant may file a civil action in a U.S. District Court. The authority the agency has to investigate and resolve complaints of discrimination stems from the statutory obligation that states that federal agencies have the primary responsibility to ensure nondiscrimination in employment. 42 U.S.C. § 2000e-16(e).
In this Management Directive, the term
"Final Agency Action" refers to an agency's last and final action on a complaint of employment discrimination. The final agency action may be in the form of a final agency decision, a final agency order implementing an Administrative Judge's decision, or a final determination on a breach of settlement agreement claim.
"Final Agency Decision" refers to a decision on a complaint of discrimination made by the agency, without an Administrative Judge, that is appealable to the Commission. It includes agency decisions to dismiss or agency decisions on the merits.
"Final Agency Order" refers to a decision by an agency to implement or not implement an Administrative Judge's decision, which is appealable to the Commission. Where the agency's final order does not fully implement the Administrative Judge's decision, the agency must simultaneously appeal to the Commission.
"Final Agency Determination" refers to an agency determination as to whether there was a breach of a settlement agreement that is appealable to the Commission.
In light of the significant responsibility agencies have for ensuring the integrity of the EEO process, agency programs must comply with the rules, regulations, orders, and instructions issued by the Commission to ensure that complaints of employment discrimination are resolved fairly and quickly. 29 C.F.R. § 1614.102(e) clearly sets forth both the authority of the Commission over the federal sector EEO programs and the duty of federal agencies to maintain EEO programs in a manner consistent with the mandatory directives of the Commission.
In this Management Directive the term
"EEO Director" - refers to the Director of the Office of Equal Employment Opportunity, Director of Civil Rights, EEO Officer, or any other title used for the position that is responsible for carrying out the responsibilities set forth in 29 C.F.R. § 1614.102(c).
To ensure that federal agencies achieve their goal of being a model workplace, all managers and employees must view/consider equal employment opportunity as an integral part of the agency's strategic mission. Commission regulations require that the EEO Director "be under the immediate supervision of the agency head." 29 C.F.R. § 1614.102(b)(4). The purpose of this requirement is to ensure that the EEO Director has the access and authority to ensure that the agency truly considers the elimination of workplace discrimination to be a fundamental aspect of the agency's mission.
Where such sub-components are authorized, the EEO Director shall be under the immediate supervision of the head of the sub-component. The sub-component EEO Director may, in the alternative, report to either the EEO Director of the parent organization or to the head of the parent organization.
In order to maintain and exercise the independent authority required of the position, the EEO Director cannot be placed under the supervision of the agency's Chief Human Capital Officer or other officials responsible for executing and advising on personnel actions or providing the agency with a legal defense to claims of discrimination, such as the Office of General Counsel.
By placing the EEO Director under the immediate supervision of the head of the agency, the agency underscores the importance of equal employment opportunity to the mission of each federal agency and ensures that the EEO Director is able to act with the greatest degree of independence.
This unfettered relationship allows the agency head to have a clear understanding of EEO factors when making organizational decisions. Placing the EEO Director under the authority of others within the agency may undermine the EEO Director=s independence, especially where the person or entity to which the EEO Director reports is involved in, or would be affected by, the actions of the EEO Director in the performance of his/her implementation of the agency program set forth in 29 C.F.R. § 1614.102.
Federal agencies have a unique role to play in ensuring equal employment opportunity. First, every agency head has a statutory obligation to eradicate unlawful employment discrimination that may occur within the agency. This anti-discrimination responsibility is what requires federal agencies to administer a fair and impartial investigative process designed to determine the validity of complaints, as well as to employ affirmative efforts to root out discrimination and ensure equal employment opportunity. The agency head designates the Director of the Office responsible for the agency's EEO programs to carry out this obligation.
At the same time, the agency head has a fiduciary obligation to defend the agency against legal challenges brought against it (agency defensive function), including charges of discrimination. The agency head designates the General Counsel of the agency (or an agency representative) to carry out this obligation.
In this Management Directive, the term
"Agency Representative" refers to any or all agency employees, (for example Defense Counsel, agency counsel, or legal representative), whose job duties include defending the agency's personnel policies and/or actions. The term is not limited to attorneys employed in an agency's Office of General Counsel or Office of Legal Counsel. The term also includes attorneys in the Office of Human Capital and non-attorney employees whose job duties include defending the agency's personnel policies and/or actions, for example, labor relations specialists.
Some may view the agency's investigative process as inherently biased because the agency accused of discrimination is the same agency that is charged with administering the EEO investigative process. Nevertheless, the statute requires that an agency comply with rules, regulations, orders and instructions which shall include the issuance of a "final action" on a complaint of discrimination, and Commission regulations establish a comprehensive system through which agencies must issue these final agency actions. Moreover, as the Commission's regulations make clear, and as this management directive reinforces, a federal agency head is obligated to protect both the integrity of the agency's EEO process and the legal interests of the agency.
It is important to reiterate that prior to the issuance of the final agency action, the agency is responsible for the fair, impartial processing and resolution of complaints of employment discrimination. Because the agency carries this responsibility of impartially processing discrimination complaints, conflicts of interest can arise when agency representatives in offices, programs, or divisions within the agency with a legal defensive role play a part in the impartial processing. This does not mean that any involvement in the EEO process by the Office of General Counsel or Office of Human Capital automatically creates a potential conflict, but instead refers to impermissible involvement in the EEO process by those employees or units of employees designated to represent the agency in adversarial proceedings. See Complainant v. Dep't. of Defense, EEOC Appeal No. 0120084008 (June 6, 2014) (finding that an agency representative should not interfere with the development of the EEO investigative record by "us[ing] the power of its office to intimidate a complainant or her witnesses"); see also Rucker v. Dep't. of the Treasury, EEOC Appeal No. 0120082225 (Feb. 4, 2011) (stating an agency "should be careful to avoid even the appearance that it is interfering with the EEO process."
While the information in the following sections illustrates the conflicts that may compromise the integrity of the impartial EEO complaint process, it is not intended to imply that agency representatives are a negative influence on the process. Many agency representatives provide meaningful contributions to the EEO in the workplace by educating managers and employees, consulting senior leaders with lessons learned from workplace disputes, and seeking to protect the agency by advising leadership to end a discriminatory practice as soon as it becomes apparent. This section focuses on the narrow occasions where the intersection of responsibilities creates a conflict affecting the impartiality of the complaint process.
The EEO complaint program is an integral part of the agency's "affirmative program to promote equal opportunity and to identify and eliminate discriminatory practices and policies." See 29 C.F.R. § 1614.102(a). To carry out this function in an impartial manner, the agency's personnel function must be kept separate from the EEO complaint process. The same agency official(s) responsible for executing and advising on personnel actions may not also be responsible for managing, advising, or overseeing the EEO pre-complaint or complaint processes. The EEO processes often scrutinize and challenge the motivations and impacts of personnel actions and decisions. In order to maintain the integrity of the EEO investigative and decision-making processes, those EEO functions must be kept separate from the personnel function.
A conflict of interest may exist when the responsible management official alleged to have engaged in discriminatory conduct is the agency head or a member of the immediate staff of the agency head, or occupies a high-level position of influence in the agency. Real or perceived conflict may occur as a result of the undue influence that the high-level official may have over the EEO Director and other involved agency personnel. Whether this conflict is real or presents the appearance of a conflict, the matter must be addressed through procedures designed to safeguard the integrity of the EEO complaint process. For example, when an EEO complaint alleges that the agency head or a member of his/her immediate staff has engaged in discrimination, the agency head should recuse himself/herself from the decision-making process, and engage an official outside his/her chain of command to issue a final action on the case. Agencies with questions regarding unique conflict issues may contact the Office of Federal Operations (OFO) for additional guidance.
If an employee wishes to file a complaint alleging discrimination by the EEO Director or another supervisor in the EEO office, a real or perceived conflict may exist because the interests of the responding official would challenge the objectivity or perceived objectivity of the EEO office. This matter must be addressed through procedures designed to safeguard the integrity of the EEO complaint process. For example, when an EEO complaint alleges that the EEO Director or a member of his/her immediate staff discriminated, the EEO Director shall recuse himself/herself and retain a third party to conduct the counseling, and investigation and draft the final agency decision for the agency head to issue.
Agencies are required to develop an impartial factual record in accordance with the instructions contained in this Management Directive. See 29 C.F.R. § 1614.108(b). Therefore, agencies must develop procedures for investigating complaints in which it is perceived that the EEO office would have an actual or perceived conflict of interest. In developing an impartial record where a conflict of interest or the appearance of a conflict exists, agencies should consider the following:
Agencies should consider whether the EEO program would be best served by entering into a formal contract with a third party or whether an informal arrangement with a third party would suffice. When establishing a formal contract, many agencies enter into interagency agreements with other agencies to handle one or more of the stages in the EEO process. See Appendix A for a sample Interagency Agreement. Other agencies have developed informal arrangements with a third party, whereby the third party provides EEO services on an as-needed basis.
Agencies should consider the best source from which to obtain a third party. Agencies have reported using private contractors, parallel sub-components within a department or agency, and other federal agencies. The Commission does not endorse any particular type of third party over any other. However, agencies should ensure that the third party adheres to the applicable requirements established in this Management Directive.
Agencies should assess the stages of the EEO complaint process at which the assistance of a third party would be most effective. Many agencies assign a third party the responsibility of providing counseling, administering EEO ADR, conducting the investigation, and/or writing the accept/dismiss letter and/or the final agency action. Pursuant to 29 C.F.R. § 1614.110(a), the agency is responsible for issuing a final order either fully implementing an Administrative Judge's decision or not fully implementing and appealing the Administrative Judge's decision; pursuant to 29 C.F.R. §1614.110(b), the agency is responsible for taking final action by issuing a final agency decision (FAD). Although the agency must issue the final action, it may assign a third party to write the final action and review the final action before issuance.
Heads of agencies must manage the dual obligations of carrying out fair and impartial investigations of complaints that result in final agency determinations as to whether discrimination has occurred and defending the agency against claims of employment discrimination. Only through the vigilant separation of the investigative and defensive functions can this inherent tension be managed.
Ensuring a clear separation between the agency's EEO complaint program and the agency's defensive function is thus the essential underpinning of a fair and impartial investigation, enhancing the credibility of the EEO office and the integrity of the EEO complaints process.
There must be a firewall between the EEO function and the agency's defensive function. The firewall will ensure that actions taken by the agency to protect itself from legal liability will not negatively influence or affect the agency's process for determining whether discrimination has occurred and, if such discrimination did occur, for remedying it at the earliest stage possible.
It is important for the EEO Director to be provided with sufficient legal resources (either directly or through contracts) so that the legal analyses necessary for reaching final agency decisions can be made within the autonomous EEO office.
At a minimum, however, the agency representative in EEO complaints may not conduct legal sufficiency reviews of EEO matters. Legal sufficiency reviews in the EEO process involve legal analysis made by the EEO office during the processing of EEO complaints, such as acceptance/dismissal of complaints, legal theories utilized by the EEO office during investigations, and legal determinations made in final agency actions. The optimal situation is for the EEO office to have sufficient internal legal resources. However, when necessary and requested by the EEO office, legal sufficiency reviews conducted outside the EEO office must be handled by individuals that are separate and apart from the agency's defensive function.
Similarly, impartiality or the appearance of impartiality is not ensured by simply rotating agency representatives within the same office and is undermined where the agency representative's associates are assigned the legal sufficiency function in EEO cases from the representative's caseload.
The agency must designate an individual to attend settlement discussions convened by a Commission Administrative Judge or to participate in EEO alternative dispute resolution (ADR) attempts. Agencies should include an official with settlement authority during all settlement discussions and at all EEO ADR meetings (Note: The agency's official with settlement authority should not be the responsible management official or agency official directly involved in the case. This is not a general prohibition on those officials from being present at appropriate settlement discussions and participating, only that they are not the officials with the settlement authority.) The probability of achieving resolution of a dispute improves significantly if the designated agency official has the authority to agree immediately to a resolution reached between the parties. If an official with settlement authority is not present at the settlement or EEO ADR negotiations, such official must be immediately accessible to the agency representative during settlement discussions or EEO ADR.
EEO officials must have the confidence of the agency and its employees. It is inconsistent with their neutral roles for EEO Counselors, EEO Investigators, EEO Program Managers, or EEO Directors to represent agencies or complainants in the EEO complaint process. Therefore, persons in these positions cannot serve as representatives for complainants or for agencies in connection with the processing of discrimination complaints. See 29 C.F.R. § 1614.605(c) (disqualification of representatives for conflict of duties).
The head of the agency shall designate an Equal Employment Opportunity Officer(s) and such Special Emphasis Program Managers, clerical, and administrative support as may be necessary to carry out the functions described in Part 1614 in all organizational units of the agency and at all agency installations. 29 C.F.R. § 1614.102(b)(4).
Special Emphasis Program Managers should include managers of the Program for Employees with Disabilities, the Federal Women's Program, the Hispanic Employment Program and such other programs as may be required by the Office of Personnel Management or the particular agency.
An agency head may delegate authority under this part to one or more designees. 29 C.F.R. § 1614.607.
The Commission requires each covered agency to use EEOC Form 462, Annual Federal Equal Employment Opportunity Statistical Report of Discrimination Complaints, to provide an annual report of the status of all pre-complaints and formal complaints processed under its EEO complaints program. See 29 C.F.R. § 1614.602(a). The Commission annually provides detailed instructions for reporting the data in an EEOC Form 462 User's Instruction Manual located on the Guidance page of the Commission's electronic document submission portal.
Pursuant to 29 C.F.R. § 1614.703, agencies are required to post cumulative quarterly and fiscal year EEO complaint statistics, titled "Equal Employment Opportunity Data Posted Pursuant to Title III of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act), Pub. L. No. 107-174," on the home page of the agency's public website. Agencies should provide a hyperlink to the statistical data entitled "No FEAR Act Data." Section 1614.704 of 29 C.F.R. sets forth the list of statistical data the agency must post. Additional information regarding No FEAR Act posting is found at http://www.eeoc.gov/federal/directives/index.cfm.
Title II of the No FEAR Act of 2002 requires each federal agency to submit to Congress, the Commission and the Attorney General an annual report that includes the agency's fiscal year Equal Employment Opportunity complaint statistics among other requirements. More information on the No FEAR Act annual report requirements can be found in 5 C.F.R. §§ 724.301-302. All No FEAR Act reports should be sent to:
Chair of the Equal Employment Opportunity Commission
c/o Office of Federal Operations
Attention: No FEAR Act Report Coordinator
P.O. Box 77960
Washington, DC 20013
No FEAR Act reports may soon also be submitted electronically through the Commission's electronic document submission portal.
Other Commission reporting requirements are set forth in Management Directive 715 issued in October 2003 which is located on the Commission's websiteat http://www.eeoc.gov/federal/directives/md715.cfm.
Agency programs will be reviewed for compliance with Commission rules, regulations, orders, Management Directives, Management Bulletins, or any other instructions issued by the Commission. Due to the variation in the requirements set forth in the above issuances the method of review may vary, depending on the requirement(s) at issue. A review may result from multiple sources: 1) monitoring agency submissions including complaint files, plans, and reports; 2) monitoring correspondence and news media for reports of agency action or non-action indicative of compliant or noncompliant activity; 3) requesting information directly from the agency; and 4) on-site visits or virtual conferences.
Pursuant to 29 C.F.R. § 1614.102(e), in cases where any of an agency's EEO programs or activities are found not to be in compliance with a Commission issuance, the agency will be notified of such non-compliance, and the agency will be given the opportunity to respond to the Commission. The agency's response should contain a statement of the agency's compliance, a plan to bring the program or activity into compliance, or a justification as to why the agency will not comply. Failure to respond or an inadequate agency response will result in escalation to the next step in this process.
In cases where noncompliance is discovered, the agency EEO Director or responsible Program Manager will be notified in writing of the noncompliance. The notice will include:
The Chair of the Commission may issue a notice to the head of the agency whose program is noncompliant when an agency head fails to be responsive and/or where efforts to assist the agency in reaching compliance through the steps set forth in Section IX.A. The notice to the agency head will include:
Where the head of the agency fails to respond timely and in good faith with a plan that the Director of Federal Operations believes is sufficient to bring the agency program into compliance, the Chair of the Commission will publically identify the noncompliant agency and the factual bases surrounding the noncompliance.
Unless prohibited by law or executive order, the Commission, in its discretion and for good cause shown, may grant agencies prospective variances from the complaint processing procedures prescribed in 29 C.F.R. Part 1614. Variances will permit agencies to conduct pilot projects of proposed changes to the complaint processing requirements of 29 C.F.R. Part 1614 that may later be made permanent through regulatory change. See 29 C.F.R. § 1614.102(f).
Agencies requesting variances must submit in writing a request for pilot authority. In its written request, the agency requesting a variance must:
The Commission will annually review and evaluate requests for pilot authority. Agencies should submit their request electronically at the end of the second quarter of the fiscal year, and the Commission will make its determination by the end of the third quarter. All approved pilot projects will begin at the beginning of the next fiscal year and terminate not more than 24 months later, unless extended (see below). The process for approval of pilot authority follows:
Variances will not be granted for individual cases and will usually not be granted for more than 24 months. The Director of the Office of Federal Operations for good cause shown may grant requests for extensions of variances for up to an additional 12 months. Additionally, the Director of the Office of Federal Operations may terminate an agency's pilot authority if the agency fails to comply with the requirements of the variance. Prior to termination of the pilot authority, the Director of the Office of Federal Operations will send a notice to the agency requesting information on compliance with the variance provisions.
Electronic submission of pilot authority requests must be made using email transmission of all documents to email@example.com or through the Commission's electronic document submission portal.