Equal employment opportunity disputes still occur in federal agencies. People feel wrongly discriminated against or they really are discriminated against for the wrong reasons. Now the Equal Employment Opportunity Commission (EEOC) has fresh advice on ways to settle EEO complaints without expensive and long litigation. For the details, the Federal Drive with Tom Temin  with Virginia Andreu, the assistant director of the EEOC’s office of federal operations.

Interview transcript:

Tom Temin You’re offering agencies are re-issuing advice for a mechanism, other than litigation, that goes back almost a quarter century, until a statutory change in 1999 established the idea of an offer of resolution instead of litigation. So until ’99, it was pretty hard to get a offer of resolution through the EEOC, because often it didn’t have the relief factors that would make true resolution. Correct?

Virginia Andreu Yes.

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Tom Temin And so since 99, offers of resolution have had to have restitution and all of the things that maybe would be granted by the EEOC or a judge instead.

Virginia Andreu Yes.

Tom Temin So the question is, what’s in the agency’s incentive to offer full restitution and full resolution if they are the, in effect, defendant in the first place? Why would they want to do that? Agencies have all the time in the world to litigate.

Virginia Andreu Well, the offer a resolution is a settlement mechanism. Unlike any other settlement mechanism, an offer which usually cost less to the agency. The use of fewer resources than the traditional administrative adjudicating process. I think the agency doesn’t have to go to a hearing, like a hearing record witness. The only solution to complaint going out for a resolution can conserve the agency resource and make more of these resources available for mission related programs and activities. Also, my review the agency case will, because if you know that you can settle a case, why not go and settle the case? And through all the time, as you also know, the complaint process is a very long process. And you can avoid, as I mentioned early, a court reported expert witness cost. In addition, you have to think about the morale. Complainant morale can be enhanced like your employee when the agency management is viewed as an open minded and cooperative in seeking to resolve disputes through a settlement mechanism. And also, it’s a benefit for complainant, because also save time and expense related to the complaint process. And complainant can receive the appropriate remedy faster if the resolution is achieved at the end of the initiative process. And only they’re going to receive something, if there’s a finding. With the overall resolution, they’re going to receive something faster and they don’t have to go through all the complicated and exhausted process.

Tom Temin Sure. So give us an example. What would be the elements in an offer of resolution that should be acceptable to both sides and to the EEOC? For example, suppose someone says, I was discriminated against because I’m female or because I’m Asian or whatever the case might be. That’s the dispute. How can the agency make that right to everybody satisfaction? What goes into that offer?

Virginia Andreu Well, the offer of resolution, first of all, it should be in writing. And should include and explain all the possible consequences of failing to accept the offer. To be effective, must include, of course, the attorney fees, cost must be specify any non-monetary relief. Following your example, I think will depend what kind of the issue. What is the basis? Well, let’s for example, say that was a female, because was not selected for the position or was not promoted. An offer of resolution in that particular case, you will include, for example, the agency must offer a complainant that they are going to be placed back to the position like it was not promotion. They’re going to give the promotion without the backpay, retroactive pay. All that was an interim constructive step increase through that time. Actually, they have to provide them. The offer of resolution also can provide for like, they will provide training to all the management included that they going to post the violation of notification in their agency and in their website. It’s basically everything that complainants will receive if you prevail in the case. The agency must offer to be an effective overall resolution.

Tom Temin You’re reissuing this guidance now, because in the view of the EEOC, agencies simply aren’t using this pathway to resolution enough.

Virginia Andreu The reality is like, if I see, we were looking at least the last five years, we only have like 500 appeal bringing in this issue. However, if the case is resolved before, between the agency and the complainant, the case most of the time will not come to offer an appeal.  So It’s hard for us to see how many really are going or use it, the offer of resolution. So they are only going to come to us when the agency failed to comply and complain and come to us asking for us to enforce the agreement. So we only have five in the last year, but that doesn’t mean that the agency are not using a lot. However, we been able to identify that settlement agreement is the preferred method of settlement of the agency’s use and complainants, because I’m more flexibility. Like a settlement agreement, the parties can agree. I want both agree with something. It can be enforceable. It’s more like flexible. They don’t have to be in a specific time of the process. But the offer of resolution, if the person doesn’t have an attorney, they only can offer when the case is assigned to an EEOC administrative judge. The person to have an attorney can be at any time but 30 days before the hearing. So the offer of resolution have a very specific timeframe. And specific time in the process need to be very specific. So settlement agreement are more flexible. As you know, the settlement agreement can offer at any time in the process. Can be not that specific. So that’s the agency. Some complain that I think they go more with the settlement agreement than the offer of resolution.

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Tom Temin And since 1999, when this was all revised, this is a hugely process driven situation that you’ve got here with EEOC. Timelines, rules and deadlines. You mentioned five or six different statutes and regulations. There’s a whole new generation of EEO officers. Sounds like there could be a special training course in simply how to do offers of resolution.

Virginia Andreu That’s what we assigned and we published the last two weeks ago. A new article in our website, EEOC.gov on there our resource. I thought all about offer of resolution. At least make agencies and complainants aware of the settlement mechanism. And of course, if the agency have more question or require more training, they always can contact us and they always can send us an email to their federal sector EEO at EEOC.gov.

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