Developments at the EEOC: The Equal Employment Opportunity Commission (EEOC) announced that it is seeking public comment on revisions to Management Directive 110 (MD-110), which governs the processing of federal sector EEO complaints along with 29 C.F.R. Part 1614. The EEOC’s revised draft MD-110 is available through regulations.gov. Interested parties may submit their comments on the proposed revisions via regulations.gov by April 25, 2014.
One significant revision to the MD-110 is the addition of a section in Chapter I regarding avoidance of conflicts of interest and the appearance of such conflicts in the processing of federal sector EEO complaints. These revisions discuss the need to maintain a separation of the agency’s personnel function from the EEO function; how to handle a complaint where the responsible management official is the agency head or is a high-level official reporting to the agency head; how to process a complaint where the responsible management official is the EEO Director or a supervisor in the EEO office; the option of contracting out to third parties the processing of EEO complaints and the formal investigation function to avoid an actual conflict or a perception of a conflict of interest; and the importance of maintaining a separation of the EEO process from the agency’s defense function. Regarding separation of the EEO and the agency’s defense functions, the revisions emphasize the fact that the EEO investigative process is a non-adversarial fact-finding process and is, therefore, not an adversarial litigation process. However, the revisions specifically allow for the presence of agency counsel during the EEO investigator’s interview of management officials and for the review of management officials’ affidavits by agency counsel.
Chapter 8 addresses the processing of complaints of class discrimination in the federal sector and has been revised to make an Administrative Judge’s decision on the merits of the class complaint a final decision, rather than a recommended decision, which the agency can implement or appeal. Chapter 11 on remedies has been expanded to include all kinds of remedial relief including back pay, front pay, attorney’s fees and costs, compensatory damages, and equitable relief. The section on back pay includes an explanation of how workers’ compensation benefits and unemployment compensation factor into back pay calculations. A section on compensatory damages has been added, which includes an explanation of pecuniary and nonpecuniary damages.
The revised MD-110 also includes a detailed history of the federal sector EEO process, covering the period from the 1940s up through the present up to the present.