Imagine you filed an equal employment opportunity (EEO) complaint against your supervisor for discrimination or retaliation. At some point in the dispute resolution process, you decide you’d like to settle. But to your surprise and frustration, the person assigned to negotiate the settlement is the very supervisor you filed the complaint against.The irony of this commonplace situation is no more. A recent update issued by the Equal Employment Opportunity Commission to its guidance in Management Directive 110 prohibits any management official directly involved in the case to have settlement authority over it. It’s designed to create a more inherently fair settlement negotiation.
This small change in settlement authorities can make a big difference for federal EEO complainants by improving the independent assessment of claims in settlement discussions by management and removing real or perceived conflicts of interest from the resolution efforts.
The new language in MD-110 states:
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) attempt. 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.)
Federal employees can use this language to assist them in the EEO process.
If an employee is going through Alternative Dispute Resolution during counseling, engaging in settlement negotiations, or participating in a mediation or settlement conference, they should ensure that the settlement authority elected by the agency is not a responsible management official.
Prior to any mediation or settlement conference, a federal employee should ask the agency who is acting as the settlement authority.
If it turns out the agency has designated a responsible management official to make settlement decisions, the federal employee should bring the new MD-110 language above to the agency’s attention and request that the settlement authority be changed pursuant to MD-110.
Federal employees should be aware that the new language does not prohibit the responsible management official from being involved in resolution efforts or attending mediation, just from being the decision maker on settlement.
Settlement discussions are an important part of the EEO process as they often provide the quickest and most certain outcomes for federal employees. Settlement is also common throughout the process. According to EEOC’s 2012 Annual Report, 54.2 percent of informal complaints did not progress to the formal stage because they were resolved either through settlement negotiations or the complaint was withdrawn. In addition, during the EEOC hearing process, 25.5 percent of complaints resulted in settlement.
Monica Molnar is a senior associate at The Federal Practice Group Worldwide Service. Her focus is federal employment and civil litigation with an emphasis on Equal Employment Opportunity claims. She can be reached at 202-862-4360.