Robert E. Walter
Most federal managers are or should be wary of becoming involved in an EEO case.
There is considerable time involved in defending the case and the outcome is uncertain. It may mean lengthy interviews with EEO counselors, and EEO investigators. If the EEO case progresses to a hearing before the Equal Employment Opportunity Commission it probably means more preparation, meetings with agency counsel, submitting to depositions, answering interrogatories and testifying at an EEOC hearing before an EEOC administrative judge.
There is the potential for Federal District Court proceedings if the complaining party should choose that route. Finally, there is the potential for disciplinary action if there is a finding of discrimination. An EEO complaint which concerns just a single individual can be a daunting experience for a manager.
The class action dragon is even more frightening. The time and resources expended to defend a class action case and the potential liability explode exponentially. Instead of one individual complainant there can be hundreds. The minimum number to qualify as a class action is between 40 and 50 class members.
A class complaint must meet a number of prerequisites to qualify processing as a class complaint. This determination is made by an EEOC administrative judge. Most class complaints do not overcome the initial hurdle and are dismissed. If a class complaint has been accepted for processing agency managers are on notice that there is enough substance to the claim that it overcame the initial hurdle. This means that there are enough members in the class, that their claims are typical and that there is a class agent with adequate resources to pursue the class action. It is up to the agency to notify potential class members that a class action has been accepted for processing. At this point the class action dragon is alive and ready to breathe some fire.
A typical class action may involve promotion practices i.e. that the agency is promoting more men to higher grades than women or that men are being promoted at a faster rate than women. Challenges alleging that the agency is hiring more men than women or that white applicants are being hired in greater numbers over Blacks or Hispanics or other protected groups are another fertile field for class actions cases. To give the class representative the opportunity to prove their case there will usually be massive discovery requests for personnel records spanning five to ten years. There may be numerous depositions of agency managers involved in promotions or hiring decisions. Statistical experts will be hired to make meaningful analysis of data to present to the administrative judge.
The potential liability if an agency should lose a class action case can be staggering. In a promotion case it could mean back pay and damages as well as promotion actions for hundreds of individuals depending on the size of the class. Since "bumping" is now an accepted remedy in EEOC proceedings, it could mean that class members can displace employees who are in the positions that the class members should have encumbered but for the discrimination. Attorney’s fees and litigation expenses are also part of the available remedies. The agency is responsible for implementing the remedies which may mean redirecting funds from program activities or asking for supplemental appropriations.
An agency may consider settlement options such as mediation as an alternative to litigation. The EEOC encourages settlements. To achieve settlement the agency may need to make concessions such as revising promotion or hiring procedures. The agency should make a careful evaluation of litigation risks to ascertain what programmatic or monetary concessions are reasonable to resolve the case. An advantage to engaging in settlement discussions is that it may give an agency a better understanding of the concerns of its employees which could lead to an improvement in the agency’s management practices.
If the case is settled class members must be given notice of the settlement and any class member may object to the settlement. If there are no objections the settlement will be binding on all class members. In the event of an objection to the settlement the administrative judge will need to determine if the settlement is fair and reasonable before it is binding on the class members. If the settlement is disapproved by the administrative judge the class complaint will be reinstated for further processing.
A pitfall may be that the agency has not retained data for sufficient periods to be able to respond to discovery requests. If this should happen there could be an adverse inference against the agency which means that the administrative judge could make a finding that if the data were available it would support the class agent’s claims of discriminatory practices. Another pitfall may be that managers who were involved in the challenged practices have retired or no longer work for the federal government.
Since EEOC does not have subpoena powers, managers who are no longer federal employees may be unavailable or unwilling to voluntarily testify on behalf of the agency. This could put the agency in a precarious position in trying to defend the alleged discriminatory practices. Finally, managers who do testify may give surprise answers that can undermine the agency’s defense of a case. In one class action case, a high level manager who was being questioned about the accelerated promotions for men but not for the women under his supervision offered his opinion that women did not deserve accelerated promotions. This was one of the factors that led to the agency’s decision to settle this case.
There are steps an agency can take to minimize the potential of an adverse finding in a class action case. Agencies should treat everyone fairly in making hiring decisions, promotions decisions, and other personnel decisions. Many times training can make managers aware of the consequences for failing to maintain fairness in the workplace and of the need to follow the rules in making personnel decisions. Agencies can also exercise better judgment in selecting their management pool.
A high level of technical expertise does not mean that an individual will be a good manager. In selecting managers agencies should give weight to leadership skills in addition to technical skills. Agencies should institute procedures to assess the effectiveness of managers’ human relations skills. The managers’ performance standards can include a human relations critical element to make managers aware of the importance of developing and maintaining human relations skills in managing the workforce. Employee surveys and exit interviews can be helpful to assess human relations performance of managers. Agencies should take appropriate steps to deal with a manager whose performance does not meet the human relations standard.
Regardless of how careful an agency may be in attempting to deal fairly with its employees there is no guarantee that some groups of employees may not still seek to file a class action case against an agency. If the agency has been diligent in treating its employees fairly it should be able to defend a class action case and if the class action dragon should appear its fiery breath may be diminished or even extinguished.
Mr. Walter is a Senior Associate with GRA, Inc. He was previously Assistant Solicitor for personel litigation and civil rights, US Department of the Interior where he handled EEOC Hearings, MSPB hearings and Special Counsel proceedings. He retired from government service in 2002 and is currently a trainer on the basics of EEO for managers and supervisors. He is also a grievance examiner and an investigator of misconduct cases.