Developments at the EEOC: On January 14, 2014, the Equal Employment Opportunity Commission (EEOC) announced that it had entered into a new Memorandum of Understanding (MOU) with the Office of Special Counsel (OSC). This new MOU carries the potential to see OSC pursuing disciplinary actions against federal managers found to have engaged in workplace discrimination.
As previously discussed in this blog, the EEOC issued reports based on stakeholder meetings with representatives of African-American and female federal employee groups. One issue raised in both reports was the apparent impunity of managers in discrimination cases, who were perceived as never suffering individual penalties, as their employing agencies often refused to discipline individual managers even when discrimination had been found by a court or an EEOC administrative judge. The EEOC historically has not permitted its administrative judges to impose discipline against discriminating managers, even when discrimination was found; at most, they could only suggest that agencies consider proposing discipline. EEO discrimination in the federal workforce is a (b)(1) Prohibited Personnel Practice (PPP), and so OSC has long had the authority to pursue discipline against managers before the Merit Systems Protection Board (MSPB)–with a maximum penalty for discriminating managers of removal, debarment from federal service for 5 years and a $1000 civil penalty. Because of budgetary concerns related to attorneys’ fees liability if OSC lost at the MSPB, OSC historically declined to prosecute PPP charges against discriminating managers. This limitation on OSC was resolved by the 2012 Whistleblower Protection Enhancement Act, leaving OSC now able to more aggressively prosecute discriminating managers.
Under the MOU, the EEOC will notify OSC of cases where federal employees were found to have engaged in discrimination. If the discriminating employee’s agency refuses to propose adverse action, OSC is then authorized to investigate–and if it chooses, to then pursue discipline against the discriminating employee at the MSPB.
The MOU also provides that OSC will be authorized to enforce orders by the EEOC in cases where an agency refuses to obey the EEOC order. Effective enforcement of EEOC remedial orders was another issue cited by the federal stakeholders groups in their meetings with the EEOC.
If fully implemented, this MOU carries the potential to add significant teeth to federal sector EEO protections, and hopefully to magnify the deterrent against managers who might otherwise engage in illegal discrimination.