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Digest Of Equal Employment Opportunity Law

Volume XIII, No. 1

Office of Federal Operations

Winter Quarter 2002


Inside

Selected EEOC Decisions on:

Note: Settlement Chapter in Management Directive 110

Note: Final Rule on Mitigating Measures Under the ADA

Article: Tools for the Mediator of EEO Disputes


The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Operations (OFO).

Carlton M. Hadden, Director, OFO

Donald Names, Director, OFO's Special Services Staff

Digest Staff

Editor: Joan Hannan

Writers: Arnold Rubin, Dann Determan, Lori Grant, Navarro Pulley

Available in accessible formats for persons with disabilities. The Digest is now available online through EEOC's homepage at www.eeoc.gov. If you wish to receive a copy in print, you must send a request to Joan Hannan, EEOC, Office of Federal Operations, 1801 L Street, N.W., Washington, D.C. 20507; or by e-mail to joan.hannan@eeoc.gov.


SELECTED EEOC DECISIONS

ADEA

Failure to state a claim. A non-dual status military technician failed to state a claim for which relief can be granted when he was forced to retire. The Commission found that Congress had recently enacted 10 U.S.C. § 10218, which mandates separation of non-dual status military technicians who are eligible for an unreduced annuity, and that the enactment created an exception to the Age Discrimination in Employment Act's prohibition of mandatory retirement. Brumbaugh v. Department of the Army, EEOC Appeal No. 01A05531 (March 29, 2001). See also Campbell v. Department of the Army, EEOC Request No. 05A10688 (August 16, 2001).

No age discrimination. In nonselection case, the Commission found no discrimination because the selectee's experience and qualifications were superior to the complainant's. In light of the selectee's superior qualifications and the fact that the selecting official was only three years younger than complainant, the Commission concluded that the selecting official's statement that he wanted "youth and new blood" was sufficient evidence of pretext. Porter v. Department of Defense (Defense Logistics Agency), EEOC Appeal No. 01A04448 (February 6, 2001).

Burden of Proof

Agency's legitimate nondiscriminatory reason. The AJ found that the agency had not sufficiently articulated a legitimate nondiscriminatory reason for its action in rescinding a position announcement, in part because she found that the agency official was not credible. EEOC ruled that this aspect of the AJ's decision was erroneous as a matter of law, because credibility pertains to pretext rather than to whether an agency has met its burden of articulating a legitimate nondiscriminatory reason. (The EEOC also determined that the complainant had not made out a prima facie case.) Thompson v. U.S. Postal Service, EEOC Appeal No. 01971189 (August 31, 2000).

Role of a stipulation. Complainant and the Department of Commerce stipulated that complainant was a qualified individual with a disability. The Commission remanded the matter for further development of the record, holding that parties may only stipulate to facts and not to conclusions of law. Schwartz v. Department of Commerce, EEOC Appeal No. 01982486 (June 8, 2000).

Collateral Attack

Collateral attack on another forum. Complainant claimed that an agency official submitted false information to the Department of Labor, which caused his compensation benefits to be terminated. The Commission affirmed the agency's dismissal, finding the complaint to be an improper collateral attack on another proceeding. Walsh v. United States Postal Service, EEOC Request No. 05980369 (March 29, 2001).

Compensatory Damages

Inadequate appeal record barred Agency from contesting AJ's $200,000.00 award. The agency failed to provide compensatory damages records to support its appeal, despite several requests from EEOC. The burden of proof was on the agency as the party contesting the AJ decision, noted the Commission; because of the failure of proof, the agency was barred the agency from challenging the award. Seek v. Department of Justice, EEOC Appeal No. 07A00005 (March 8, 2001).

$185,000 in non-pecuniary damages. Complainant was removed from employment one week after disclosing to his supervisor that he was HIV-positive. The agency accepted an AJ's finding of discrimination but reduced the award of non-pecuniary damages. On appeal of the damages issue, the Commission decided that the agency's discriminatory termination was the proximate cause of complainant's being subjected to a number of events which the Commission summed up as living "a nomadic existence for two years with few worldly goods." The Commission awarded complainant $185,000 in non-pecuniary compensatory damages. Mack v. Department of Veterans Affairs, EEOC Appeal No. 01983217 (June 23, 2000), RTR denied, EEOC Request No. 05A01058 (October 26, 2000).

Claim not moot. The agency dismissed one of complainant's claims on the grounds that it was moot, without addressing his request for an "appropriate monetary award." Held: the claim was not moot because, at a minimum, the agency failed to address the request. Gore v. United States Postal Service, EEOC Appeal No. 01995133 (September 4, 2001).

Commission awards compensatory damages for sexual harassment. An EEOC Administrative Judge (AJ) found that complainant, an engineer aboard a Naval vessel, was subjected to hostile environment sexual harassment. The agency adopted the AJ's findings and issued a final decision (FAD) awarding complainant $10,000 in non-pecuniary compensatory damages. On appeal, the Commission considered the severity and duration of the emotional harm suffered by complainant and increased the award to $20,000. Darrell v. Department of the Navy, EEOC Appeal No. 01992288 (January 19, 2001), request to reconsider (RTR) denied, EEOC Request No. 05A10286 (May 2, 2001).

Compliance with EEOC Orders

Training ordered for purpose of educating employees. In this sexual harassment case, the Commission ordered Title VII training of all managers and supervisors at an agency facility. The agency argued that the training should be restricted to employees involved in the harassment. The agency misperceived the purpose of the training, stated the Commission. It was not designed to punish, but rather to educate, so as to avoid future violations. Wild v. Department of Defense (Defense Security Service), EEOC Request No. 05A10058 (March 16, 2001).

Appropriate action taken against responsible management official. EEOC Order directed agency to take appropriate action against official who discriminated against petitioner. Petitioner contended that the official received a favorable assignment following the Order. The Commission determined that in taking away the official's supervisory duties and reassigning him to another office, the agency complied with the Order. Hasan v. U.S. Information Agency, EEOC Petition No. 04980028 (January 14, 2000).

Constructive Discharge

Constructive discharge. Complainant claimed that reprisal in violation of the ADEA was operating in his early retirement. While finding that complainant had been subjected to retaliatory treatment, the Commission declined to find that a reasonable person in complainant's position would have found the working conditions intolerable. The Commission found that complainant could have reported for work while pursuing EEO claims he had filed regarding the agency actions, such as transfers, that he claimed compelled him to retire early. Olsen v. Department of Defense, Army & Air Force Exchange Service, EEOC Request No. 05A10104 (March 22, 2001).

Disability Law - Definitions

Substantially limited. The Commission rejected the agency's assertion that complainant was not a person with a disability (carpal tunnel syndrome) within the meaning of the ADA because she was not limited in performing a class of jobs, and instead affirmed the finding below that complainant was covered under the statute because she was substantially limited in her ability to perform manual tasks and in lifting. Wesson v. United States Postal Service, EEOC Request No. 05990963 (August 2, 2001).

Not substantially limited. While complainant had a back condition and restrictions on lifting, bending, etc., the Commission did not find the condition to be substantially limiting as compared to the average person in the general population. Jones v. United States Postal Service, EEOC Petition No. 03990091 (October 31, 2001).

Temporary condition. Complainant had a left hand sprain, from which he was medically released to return to full duty condition within three months. The condition did not limit any major life activity on more than a temporary basis, the Commission found, and therefore was not a substantially limiting impairment. Bell v. United States Postal Service, EEOC Appeal No. 01986889 (August 16, 2001).

Inability to work one job is not disability as to working. The agency refused to excuse complainant from a 3-week temporary duty training assignment. The Commission found that her impairment arose from the stress caused by her position; that her condition was temporary; and that there was no evidence that she was substantially limited in a major life activity including performing work in a class of jobs or a broad range of jobs in various classes. Webber v. Department of the Air Force, EEOC Appeal No. 01980587 (March 2, 2001).

Disability Law - Bias

Denial of overtime. For a period of several months, complainant was not permitted to sign up for overtime because his supervisor considered him to be on light duty. The Commission found that no other employee, including those on light duty, had been denied overtime. The Commission further found that the agency had no legitimate reason to deny overtime, and concluded that discrimination more likely than not was a motivating factor. Lorenzo v. United States Postal Service, EEOC Appeal No. 01973337 (May 25, 2000).

Bid for preferred assignment ignored. Complainant submitted a bid but the U.S. Postal Service refused to honor it for the reason that she was a modified duty employee. The Commission stated that the agency cannot prohibit a bid on a position from an employee who is capable of performing the essential functions of that position. Based in part on its finding that the agency summarily rejected the bid based on its knowledge of complainant's disability, the Commission found that the bid rejection was discriminatory. Joch v. United States Postal Service, EEOC Request No. 05971044 (June 29, 2000). See also, Asprec v. United States Postal Service, EEOC Appeal No. 01995160 (June 29, 2000).

Disability Law - Reasonable Accommodation

Agency met its obligations under the Rehabilitation Act. The Commission found that the agency had properly initiated a dialog with complainant concerning what reasonable accommodation was required, while complainant failed to permit the agency to inquire from her physician what duties were within her medical restrictions. Ross v. Department of the Treasury, EEOC Appeal No. 01982708 (August 2, 2001). See also Raju v. Department of Veterans Affairs, EEOC Appeal No. 01986574 (November 1, 2001) (individual who fails to provide necessary documentary evidence of disability is not entitled to accommodation).

Agency failed to act on accommodation request in manner required. Complainant had accepted a GS-3 receptionist position offered as a reasonable accommodation, while explicitly stating her intent to pursue accommodation as a GS-7. The agency refused to even consider complainant's physician's proposal that assistive computer technology, voice-activated software, be explored as reasonable accommodation of complainant in her GS-7 position. The Commission ruled that complainant had only "conditionally accepted" the GS-3 position, and that the agency was still obligated to accommodate complainant in her original GS-7 position, if possible. Ghannon v. Agency for International Development, EEOC Request No. 05A10146 (August 2, 2001).

Failure to look to other facilities is denial of accommodation. The agency failed to search for vacant positions at other facilities for complainant, who had substantial neck and shoulder impairments. As part of the remedy, and noting complainant's claim that she had not worked since her light duty request was denied, EEOC ordered the agency to reinstate complainant to her former position with back pay and interest. Patrick v. United States Postal Service, EEOC Appeal No. 01976918 (March 29, 2001).

Accommodation duty satisfied when reassignment offered. Complainant asked to be reassigned from a criminal investigator position to a position not involving aggressive law enforcement. The agency identified three such positions for which complainant was qualified and offered to reassign him. However, his physician stated that these positions were not suitable because they would not permit complainant to utilize his enforcement skills and would require him to learn a new job. Held: the agency met its obligation to accommodate complainant's disability. Baker v. Department of Justice (DEA), EEOC Appeal No. 01972309 (March 29, 2001).

No obligation to create position as an accommodation. Petitioner, who had been on light duty for two and one-half years, was removed from his Air Force position (unspecified shoulder impairment). The Commission found that petitioner was not a qualified individual with a disability because he could not perform the essential functions of his then-current position, and the agency was unable to find a funded vacant position for which he was qualified within his medical restrictions. EEOC stated that the agency was not obligated to create a position as an accommodation. Ward v. Department of the Air Force, EEOC Petition No. 03A00018 (March 22, 2001).

Delayed search effort. EEOC Administrative Judge found that the United States Postal Service made little effort to search for an alternative position until it was in its financial interest to do so, when complainant began to collect OWCP lost wages benefits. The Commission agreed with the Administrative Judge in noting that it was precisely the agency's lack of effort which resulted in a finding of discrimination. Reagins v. United States Postal Service, EEOC Appeal No. 01974481 (April 6, 2000).

No obligation to excuse insubordination. Petitioner failed to establish a causal nexus between her disability and the misconduct for which she was removed. Even if petitioner had shown a nexus, the Commission stated that it would still uphold her removal as an employer may properly hold all employees to the same performance and conduct standards as long as those standards are job related and consistent with business necessity. Miner v. Small Business Administration, EEOC Petition No. 03990021 (May 25, 2000).

EEO Process

Interference with EEO process. Complainant alleged that her supervisor threatened her not to file an EEO complaint, and an EEO official initially refused to allow her to file. Noting the agency "inexplicably" failed to address these contentions in its decision, the Commission nevertheless reminded the agency that such acts could have a chilling effect on employees exercising their EEO rights, and that the agency has a continuing EEO duty in its policies and practices. The Commission ordered the agency to provide EEO training to management and to EEO staff. Parker v. Department of the Navy, EEOC Appeal No. 01970412 (October 4, 2000).

No abuse of process. The agency asserted that complainant had filed 29 complaints between November 1, 1988, and February 19, 1999. The agency averred that it had issued decisions for 16 of the complaints, 13 of which complainant had appealed to EEOC. The Commission found that the record did not show a clear intent by complainant to utilize the EEO process for other than legitimate purposes, and ordered the agency to consolidate complainant's 12 complaints for further processing. Pleasant v. Department of Housing and Urban Development, EEOC Appeal No. 01995528, et al. (February 2, 2001).

Failure to State a Claim

Agency should not look at the merits of a complaint when deciding to dismiss. Complainant filed an EEO complaint of retaliation, asserting that e-mail she had sent to several officials regarding her new supervisor was protected EEO activity. The Department of the Navy dismissed the complaint on the grounds that her act did not qualify as protected activity. The Commission reversed the dismissal, pointing out that the agency improperly looked at the merits of the complaint to reach its procedural result. Nesbit v. Department of the Navy, EEOC Request No. 05980598 (June 5, 2000).

Foreign national. Complainant was a citizen of Nigeria, and not of the United States, employed overseas under a Foreign Service contract that contained an anti-discrimination term. EEOC reiterated prior holdings that, in such cases as this, it lacked jurisdiction to entertain complainant's claim. Awofeso v. Department of State, EEOC Appeal No. 01A04498 (June 11, 2001).

Stated a claim. Wife alleged reprisal discrimination when her husband, who was also an agency employee, was issued a Letter of Counseling regarding a conversation he had with complainant's supervisor as to complainant's employment and training records discrepancies. EEOC indicated that both persons could bring claims of retaliation. Alexander v. Department of the Air Force, EEOC Request No. 05980788 (August 17, 2000).

Fragmentation

Pattern aspect of claim. Complainant identified four incidents over a one-year period in his claim alleging harassment. The agency looked at the four incidents individually and dismissed two of them as untimely. The Commission ruled that treating the incidents in a piecemeal manner was improper, and reversed the dismissals. Meeks v. Department of Energy, EEOC Appeal No. 01A14036 (September 24, 2001).

Harassment/Hostile Work Environment

Supervisor involved in gender and disability harassment. Demeaning and mean-spirited comments from a number of male coworkers which expressed resentment toward accommodations complainant was receiving or were negative towards women created an abusive working environment. The Commission found that the supervisor participated in and encouraged the harassment. The decision describes the agency's attempted corrective actions. The Commission found them ineffective, slow, and incomplete, and in addition found no evidence of a strong anti-harassment policy. Horkan v. United States Postal Service, EEOC Appeal No. 01976837 (April 6, 2000).

"Equal opportunity harasser." A male complainant alleged that he was sexually harassed by his female second level supervisor. The AJ found that, among other things, the supervisor engaged in gross sexual conduct, including making jokes about the size of complainant's genitalia, and using post-it notes imprinted with the comment, "Men have two faults-everything they say and everything they do." The AJ found no discrimination, reasoning in part that the record did not show the harassment was directed at the complainant because of his sex. The appeal decision reversed. It found that it was clear that the supervisor's references to the size of the complainant's male genitalia and the offensive post-it notes were directed at him because he was a man. The Commission noted that the fact that the supervisor may have been in some respects an "equal opportunity harasser" was not enough in this case to immunize her behavior. Wild v. Department of Defense, 01984101 (September 12, 2000), RTR denied, EEOC Request No. 05A10058 (March 16. 2001).

Failure to reassign. The failure of the agency to reassign complainant to a different supervisor from the one the agency itself had found previously subjected her to a hostile work environment, based on sex and age, constituted discriminatory harassment. St. Louis v. Department of Agriculture, EEOC Appeal No. 01986088 (October 3, 2000).

Hearings Process

Unduly harsh sanction. Complainant failed to return a Designation of Representation form, but telephoned the AJ's office to orally request an extension of time to find an attorney. AJ dismissed complaint. Commission: Dismissal was "unduly harsh;" it is only appropriate in extreme cases. Complaint was remanded for a hearing. Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000).

Appropriate sanction. After complainant failed to respond to several orders issued by the AJ, the AJ issued an Order to Dismiss. Complainant sought reconsideration of his decision, asserting that she didn't understand what was required of her, was in the process of obtaining representation, and, noting that she takes depression and pain medication, claimed that she "forgot" to request postponement of the hearing. The Commission noted that because complainant's conduct was not contumacious, the more proper sanction would have been to cancel the hearing and remanding the complaint to the agency. Rusk v. Social Security Administration, EEOC Appeal No. 01A04883 (August 3, 2001).

Judicial Notice

Medical evidence. The Commission took judicial notice, from a prior decision, of medical evidence of complainant's post traumatic stress disorder, resulting from her supervisor's actions. St. Louis v. Department of Agriculture, EEOC Appeal No. 01986088 (October 3, 2000).

Pretext

Reliance on poor attendance and safety records was pretext. Records forwarded with complainant's transfer request showed that any attendance problems were a direct result of the lung cancer treatment he received, and that complainant was considered punctual and reliable. The Commission found that complainant established that he was discriminated against on the basis of his record of disability when he was denied a transfer to another location. Chavis v. United States Postal Service, EEOC Appeal No. 01983332 (August 16, 2001).

Retaliation

No reprisal discrimination. Complainants failed to prove that the agency's reasons for reassigning registry dispatch duties (complainants' preferred assignments) to employees who reported earlier than complainants was pretextual. The Commission found the decision to be based on operational needs and not on complainants' prior EEO activity. Chan, et al. v. United States Postal Service, EEOC Appeal No. 01A03401 (February 7, 2001).

Allegations taken together state a claim of reprisal. Acknowledging that individually some of complainant's several allegations may not state a claim of reprisal, the Commission nevertheless found that the acts could be construed as demonstrating an intent to deter a reasonable person from pursuing the EEO process and thus state a claim of reprisal. The Commission specifically rejected the U.S. Postal Service's argument that complainant did not suffer any harm to a term, condition, or privilege of employment, citing to EEOC's Compliance Manual Section on Retaliation. Stup v. United States Postal Service, EEOC Request Nos. 05990465, 05990666 (April 11, 2000). See also Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000) (sets out Commission's position on types of reprisal that are actionable, i.e., not restricted to those which affect a term or condition of employment); Sanders v. Department of Education, EEOC Request No. 05990744 (October 13, 2000).

Standard of Review

Substantial evidence. Under the revised regulations, AJ factual findings are upheld if supported by substantial evidence, meaning evidence that a reasonable person might accept to support a conclusion. Lorenzo v. United States Postal Service, EEOC Appeal No. 01973337 (May 25, 2000). The Commission routinely applies the substantial evidence standard to all pending cases, including where AJ's issued recommended decisions under the old regulations. E.g. Williams v. United States Postal Service, 01973755 (September 11, 2000).

De novo. The standard of review for determining whether an AJ properly issued a summary judgment decision rather than hold a hearing is de novo. Silva v. National Credit Union Administration, EEOC Request No. 05971113 (July 31, 2000).

Hearing required. EEOC remanded this case of alleged racial and religious harassment, holding that a hearing was required to assess the credibility of the supervisor, co-workers, and complainant. Williams v. Department of Veterans Affairs, EEOC Appeal No. 01A03176 (October 17, 2000).

Timeliness

Agency caused delay. Complainant argued that he delayed contacting an EEO Counselor because the EEO office misled him, and the agency did not rebut his contention. The Commission found the claim timely. Hernandez, Jr., v. Department of the Air Force, 05980835 (July 14, 2000).

Not an employee. Complainant's EEO contact was timely when his unrebutted contention was that, as a non-agency employee, he was not informed or otherwise aware of the EEO process. Francis v. United States Postal Service, EEOC Appeal No. 01A04739 (June 14. 2001).

Attorney should have been served. Since complainant clearly identified her attorney of record in pre-complaint correspondence, the Commission held that the agency was on notice that it was to serve her attorney, yet failed to do so. The Commission reversed the agency's dismissal for untimeliness. McCain v. United States Postal Service, 01A12767 (August 8, 2001).

Tolling appropriate. The Commission found that complainant's justification for the late filing of his formal complaint - that he was unable to leave his quarters because there was a typhoon condition emergency 1 - was sufficient to toll the limitations period. Vogel v. Navy, 01A10189 (August 3, 2001).

Title VII

Indicia of animus, The selecting official's animus in this nonselection case was shown, stated the EEOC AJ, by a number of indicia, including his refusal to show complainant the position announcement, his varying and contradictory explanations for his selection decision, and his stereotypical thinking concerning females in the air traffic control field. The Commission found no basis to disturb the AJ's decision finding sex discrimination. The agency was ordered to offer complainant the position she sought, back pay and other benefits, and training of the selecting official. McDonough v. Department of Transportation, EEOC Appeal No. 01997015 (October 3, 2001).

Discrimination found on several bases in assignment and discipline. Reversing the FAD, the Commission found that a Postal Service facility had discriminated against complainant based on national origin (Puerto Rican), age (51), and reprisal in connection with an assignment and Letter of Warning (LOW) . As part of the relief ordered, EEOC directed the agency to pay complainant $4,000.00 in compensatory damages, offer her a detail, and expunge the LOW. Greene v. United States Postal Service, EEOC Appeal No. 01985383 (March 5, 2001).

Cronyism, without more, does not violate Title VII. Complainant alleged sex discrimination when she was not selected for a temporary promotion at an Army facility. EEOC affirmed the FAD's finding of no discrimination, noting that complainant had failed to prove pretextual the Army's explanation that the selectee was the best qualified candidate. The Commission rejected complainant's argument that the selectee was one of the "good old boys," suggesting cronyism. The Commission stated that cronyism, absent other evidence of a discriminatory animus against complainant or anyone else on the basis of sex, did not violate Title VII. Kay v. Department of the Army, EEOC Appeal No. 01A04243 (January 30, 2001).

NOTE: Settlement Chapter in Management Directive 110

Chapter 12 on Settlement Authority was added to EEOC's Management Directive 110 on May 17, 2000. It is intended to facilitate settlement of federal sector EEO cases at all stages of the complaint process, by giving both agencies and their employees detailed information about settlement options. The Chapter states that agencies have broad authority to settle EEO disputes by applying the full range of remedies a court could order if the case were to go to trial. Available in settlements are such remedies as a retroactive or prospective personnel action, back pay, attorney's fees, costs, and/or monetary damages.

The guidance notes that agencies and their employees may be creative in crafting settlements. Agreements may contain monetary payments that are independent of any personnel action, providing that the payment does not exceed the amount of back pay, attorney's fees, costs or damages the employee would be entitled to in the case if discrimination had been found. For example, if the parties agree, they could settle a case involving a claim of a discriminatorily denied promotion with a cash payment to the employee but no promotion. Remedies can also include more creative measures such as the provision of out-placement services to a discharged employee, so long as the costs don't exceed what the employee would be entitled to under EEO laws. The new chapter also points out that settlement of EEO disputes may contain terms affecting the retirement status of the complainant. If the settlement provides for a retroactive personnel action, for example, an agency must make all appropriate contributions to the retirement funds. Or, if the settlement provides for a lump sum payment intended to award enhanced retirement benefits, the specifics of pay and pay periods must be specified in the settlement terms. The full text of MD-110, including the new Chapter, is on EEOC's website, www.eeoc.gov, under "Federal Sector Information."

NOTE: Final Rule on Mitigating Measures Under the ADA

The Commission has issued a final rule rescinding parts of its Interpretive Guidance on Title I of the Americans With Disabilities Act (ADA) involving mitigating measures used by an individual to eliminate or reduce the effects of an impairment. The revised guidance clarifies the legal standard for determining when a person who uses mitigating measures meets the ADA's definition of "disability." The rule is in line with the Supreme Court decisions in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999) holding that the determination of whether a person has a current disability under the ADA must be made by considering any mitigating measures that a person uses to eliminate or reduce the effects of an impairment. The text of the final rule is available on EEOC's website, www.eeoc.gov, under "EEOC Regulations."

Tools for the Mediator of EEO Disputes

A good mediator of employment discrimination disputes needs expertise in two fields--the mediation techniques used by his or her agency, and equal employment opportunity law. See Chapter 3 of the Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110) (November 9, 1999). This article will discuss four areas that mediators can incorporate into the tools of their trade: (A) Preparing for the Mediation; (B) Overcoming Impasse; (C) Utilizing Available Remedies; and (D) Drafting the Settlement Agreement.

  1. Preparing for the Mediation
    1. Knowledge of EEO Law

      Chapter 3 (IV)(B) of MD-110 states that neutrals shall be familiar with the EEO process, the statutes that the Equal Employment Opportunity Commission enforces, the theories of discrimination, and the available remedies. Becoming familiar with the EEO process is easier than ever through the use of a computer-based training tool, entitled "Sailing Through the Federal Sector EEO Process." The software is fully accessible for individuals with disabilities, and takes approximately three hours to complete.(1)

    2. Establishing Ground Rules

      Mediators should consider discussing the ground rules for the mediation process with the disputants as soon as possible. The primary goal of establishing ground rules is to inform the disputants about the process so as to avoid confusion during the mediation session. Another purpose of the ground rules is to establish trust and build rapport with the disputants by letting them know that the mediation will take place in a safe, controlled environment. Finally, the ground rules will attempt to prevent or limit adversarial posturing and intimidation tactics during the mediation process. Here are some suggested ground rules:

      1. Make sure there is not an imbalanced number of participants between the disputants. An imbalance could lead to an unmanageable mediation session. One serious consequence could be feelings of intimidation by one of the disputants, particularly the complainant. Therefore, the mediator should determine who will be attending the mediation and for what purpose. The mediator should ask whether the complainant will bring a representative, and whether the agency will send the responsible management official (RMO) and an agency representative. If the RMO will not attend, the mediator should strongly encourage the agency to send a management official who has extensive knowledge of the facts involved in the dispute.
      2. The agency representative must have settlement authority or immediate access to someone who has settlement authority.
      3. Since the mediator is not a decision-maker, it is unnecessary to provide the mediator with any pleadings or other documents.
      4. The disputants are expected to do most of the talking, and their representatives will have an opportunity to clarify or expand upon the matter, if necessary.
      5. The disputants should treat one another with respect and courtesy during the mediation session by allowing each other to speak without interruption and listening to each other.
      6. By agreeing to mediate, the disputants promise to negotiate in good faith.
      7. Prior to the mediation session, the disputants should agree to the duration of the session so that they know in advance not to schedule other appointments on that date.
      8. The disputants may end the mediation session at any time, and return to the EEO process.
  2. Overcoming Impasse

    Federal EEO cases are different from the typical financial dispute, because they involve personal relationships between the disputants which may continue through and beyond the resolution of the matter. The essence of an EEO case involves an accusation of discrimination which, in and of itself, can create heightened emotional reactions from the disputants. Moreover, the EEO administrative process, which is both complicated and lengthy, can intensify the disputants' emotions. The following tools can help a mediator dilute tension and encourage the disputants to resolve their dispute.

    1. Structured Venting

      Often, many complainants participate in mediation because they simply want to be heard. After the working relationship between the disputants has deteriorated and an EEO complaint has been filed, the management officials may feel just as frustrated as the complainant and also personally offended by the complaint. The mediation session can be a suitable forum for structured venting by the disputants. The key is to create a safe environment in which the disputants are encouraged to speak openly. Here are some techniques for doing so.

      1. Seat the disputants next to each other, preferably at a circular table, rather than across from each other;
      2. Ask the disputants if they can be addressed on a first name basis;
      3. Ask the disputants to speak to each other, rather than the mediator;
      4. Ask the disputants to use "I" statements, rather than the more accusatory "You" statements;
      5. Encourage the disputants to express their feelings, rather than their legal positions;
      6. Ask the disputants to physically switch seats and describe the other's interests, as an aid to mutual understanding.
      7. Utilize a caucus to take a break if the tension becomes too high or if the disputants are reluctant to communicate their interests.
    2. Reality Testing

      Another tool at the mediator's disposal is reality testing. When disputants are unfamiliar with the EEO process, mediators can provide the disputants with relevant facts to help educate them on the process. Traditional reality testing techniques would assist the disputants in evaluating the strengths and weaknesses of their respective positions. For example, the mediator may ask complainants how they intend to establish a pretext for discrimination which is the ultimate burden of proof in EEO cases. Similarly, with the purpose of discussing monetary relief and not the merits of the case, mediators may refer agency representatives to EEO case law in order to assess the compensatory damages awarded by the Commission in cases with similar fact patterns.

    3. Discussing "pressure points"

      Discussing certain pressure points that exist within the EEO process may encourage the disputants to resolve their dispute. It is important to remember that these pressure points are used merely for the purpose of educating the disputants. The disputants' decision to resolve their dispute must be completely voluntary and without any coercion by the mediators. See Chapter 3(VII)(A) of MD-110. Moreover, if settlement efforts fail, a mediator should not discourage complainants from pursuing the EEO process. Listed below are pressure points that are relevant to disputants in an EEO matter:

      1. a. Advise the disputants that they can resolve this matter in their own terms rather than relying upon a third party (the Commission or Federal Court) to make a decision. Disputants should appreciate that they, not someone else, control the outcome.
      2. Ask the disputants whether they want to improve their working relationship by reaching a settlement today, or possibly incur increasing tension during a lengthy litigation process.
      3. Explain to the complainant that litigating an EEO complaint can be quite lengthy and costly, in terms of both time and money.
      4. Advise the agency that the cost of the EEO process increases dramatically with each stage: investigation, hearing, administrative appeal, and court.
      5. Remind the agency that if a formal complaint is filed, office morale and productivity could decline during the investigation, hearing, and civil action.
  3. Utilizing Available Remedies

    The issue of remedies is the basis for one of the biggest problems in resolving federal sector EEO cases. Disputants find it difficult to think "outside the box." Agency representatives often mistakenly focus exclusively on monetary options, ignoring non-monetary options which could be instrumental in settling the dispute. Similarly, complainants may be fixated on obtaining a coveted position or monetary relief, failing to see the value of settlement terms such as training, details to other positions, or other career-enhancing options. Mediators, if they are knowledgeable of available remedies, have the opportunity to assist the disputants in developing more creative settlement options. The following are just some of the monetary and non-monetary settlement options that mediators can suggest to disputants; many other options exist:

    1. Monetary Options
      1. Compensatory damages for pecuniary (e.g., medical expenses) and non-pecuniary (e.g., pain and suffering) relief;
      2. Back pay/front pay;
      3. A lump sum payment at one time or staggered over months or fiscal years;
      4. Attorney's fees;
      5. A performance award;
      6. A permanent grade or step increase; and
      7. A detail to a higher grade.
    2. Non-Monetary Options
      1. An explanation or apology from the RMO;
      2. Transfer to another position or office for the complainant;
      3. Career advancement training for the complainant;
      4. EEO Training for the RMO and/or other employees;
      5. Restructure of the complainant's position, to modify work assignments and/or request a desk audit;
      6. Priority selection for the complainant when the next position is available;
      7. Outplacement services for the complainant; and
      8. Favorable or neutral reference letter for the complainant.
  4. Drafting the Settlement Agreement

    "Any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties." 29 C.F.R. § 1614.504(a).

    1. Must be in Writing and Signed by Parties

      Mediators of EEO cases must be aware that the resolutions cannot be resolved on the basis of a handshake. Chapter 3(V) of the MD-110 requires that the terms of the resolution must be reduced to writing and signed by both parties. Since the mediator is not a party to the dispute, it is unnecessary for the mediator to sign the agreement.

    2. Specificity

      Chapter 3(V) of the MD-110 establishes that the settlement agreement must clearly state the terms of the resolution. Mediators should ensure that the settlement agreements contain language which describes the parties, the complaint number(s), and the statutes, basis(es) and issue(s) alleged. In addition, the settlement agreement should contain specific terms, including a definition of each term, when it will be performed, and by which party. Several common provisions are discussed below.

      1. Confidentiality Provision. Settlement agreements are not confidential; however, the parties may choose to include a confidentiality provision in the agreement. A confidentiality provision should be very specific and reciprocal in nature. For example, both parties should identify the people who are permitted to see the agreement and/or be advised of the terms of the agreement. In addition, the parties should specify the penalty for breaching the confidentiality provision. If the confidentiality provision remains undefined, enforcement problems are likely to ensue.
      2. Vague and Unenforceable Provisions. Provisions which promise that the employer will treat the appellant with "dignity and respect" are often difficult to define and enforce because the terms are so subjective. If the parties insist on including such a clause, the settlement agreement should clearly define the specific actions that constitute "dignity and respect."
      3. Priority Consideration Provision. If an agency offers priority consideration to the complainant for the next available position, be sure that the settlement agreement clearly defines this term. In particular, the complainant must understand what the agency is promising to do. The agreement should explain whether the agency is promising to give the complainant the next available position, or whether the agency is merely agreeing to consider the complainant for the next position. Also, if possible, the agreement should specify when the next position will become available. It is important to use specific language to ensure that the parties have a clear understanding of the action(s) that the agency is promising to perform.
      4. ADEA Provision. Where a written settlement agreement involving a claim of age discrimination brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a, purports to waive the ADEA claim, the agreement must comply with the requirements of the Older Workers Benefit Protection Act of 1990, 29 U.S.C. §626(f). A waiver is not considered knowing and voluntary unless at a minimum it is clearly written from the viewpoint of the complainant; it specifically refers to rights under the ADEA; there is no waiver of future rights; valuable consideration is given for the waiver; the complainant is advised in writing to consult with an attorney before executing the agreement; and the complainant is given a reasonable period of time to consider the agreement.
    3. Enforceability

      Chapter 3(V) of the MD-110 provides that the settlement agreement must contain the enforcement procedures available under 29 C.F.R. § 1614.504 in the event that the agency fails to comply with the terms of the resolution. These procedures include the complainant's notification to the agency of the alleged breach; an opportunity for the agency to either cure the breach or to notify the complainant of what action if any that it plans to take; and the complainant's right to appeal to the EEOC from the agency's decision.


1. A CD with the training course may be obtained, free of charge, from the EEOC at the following email address: EEO.CBT@EEOC.GOV.