Each federal agency shall appoint a Director of Equal Employment Opportunity (EEO Director), who shall be under the immediate supervision of the agency head. 29 C.F.R. § 1614.102(b)(4).(1) The EEO Director shall be responsible for the implementation of a continuing affirmative employment program to promote equal employment opportunity and to identify and eliminate discriminatory practices and policies. The EEO Director cannot be placed under the supervision of the agency's Director of Personnel or other officials responsible for executing and advising on personnel actions.
The Equal Employment Opportunity Commission is authorized to issue rules, regulations, orders, and instructions 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 Fair Labor Standards Act, 29 U.S.C. 201 et seq.; Executive Order 12067, 43 Fed. Reg. 28,967 (1978); and Executive Order 11478, 34 Fed. Reg. 12,985 (1969), as amended by Executive Order 12106 (1979). It is pursuant to that authority that the EEOC issues this Management Directive.
Federal agencies shall place the EEO Director in a direct reporting relationship with the head of the agency. By placing the EEO Director in a direct reporting relationship to 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. 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.
Agencies must avoid conflicts of position or conflicts of interest as well as the appearance of such conflicts. For example, 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. Those processes often 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 functions must be kept separate from the personnel function.
Heads of agencies must not permit intrusion on the investigations and deliberations of EEO complaints by agency representatives and offices responsible for defending the agency against EEO complaints. Maintaining distance between the fact-finding and defensive functions of the agency enhances the credibility of the EEO office and the integrity of the EEO complaints process. Legal sufficiency reviews of EEO matters must be handled by a functional unit that is separate and apart from the unit which handles agency representation in EEO complaints. The Commission requires this separation because impartiality and the appearance of impartiality is important to the credibility of the equal employment program.
For example, it would be intrusive for the individual who represented the agency in an equal employment hearing to have authority to approve decisions with respect to resolution in the same or related cases. Impartiality or appearance of impartiality is undermined where members of the office where the representative is employed have the legal sufficiency function with respect to cases in which a colleague served as agency representative.
The agency must designate an individual to attend settlement discussions convened by an EEOC Administrative Judge or to participate in alternative dispute resolution (ADR) attempts. Agencies should include an official with settlement authority at all ADR meetings. 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 ADR negotiations, such official must be immediately accessible to the agency representative during settlement discussions or ADR.
The head of the agency designates 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 may include managers of the Program for People with Disabilities, the Federal Women's Program, 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. § 1614.607.
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 officers, and EEO program managers to serve as representatives for agencies or complainants. Therefore, persons in these positions cannot serve as representatives for complainants or for agencies in connection with the processing of discrimination complaints. See § 1614.605(c) (disqualification of representatives for conflict of duties).
1. The term "federal agency" or "agency," as used in this Management Directive, applies 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, Postal Rate Commission, Tennessee Valley Authority, the National Oceanic and Atmospheric Administration Commissioned Corps, the Government Printing Office, and the Smithsonian Institution. See 29 C.F.R. § 1614.103(b). The term also may include such other agencies, administrations, bureaus (etc.) 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. Where such agencies, administrations, bureaus (etc.) have been so authorized, the EEO Director shall be under the immediate supervision of the head of the agency, administration, bureau (etc.), who, in turn, should report to either the EEO Director within the parent organization or to the head of such organization.
Chapter 2 | Table of Content
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