UNIONS FOOLISH TO REFER EEO COMPLAINTS TO AGENCY EEO OFFICERS
LEADER ALERT! Too many unions think that they should not use the grievance process to pursue employee complaints about civil rights discrimination. As a result, they refer employees with discrimination suspicions to the agency EEO officer. Those unions are making a big mistake.
EEOC just announced that employees filed nearly 100,000 discrimination complaints with it during FY 2011, which is the most ever filed. Employees won over 500 million in back pay and other damages. Obviously, employees know about these rights and want them enforced. A union certainly has the legal right to exclude discrimination complaints from its negotiated grievance procedure or even if they are grievable to encourage employees to use the agency EEO officer, but you have to ask yourself why. After all, these are employees who believe that management has harmed them, want to do something about it, and need help. Turning these employees away is akin to Walmart sending prospective customers away if they already are members of a Costco or other buying club.
Another reason why the union should use its grievance-arbitration process for these complaints is that EEOC will not consider any complaints other than discrimination. So, if the employee believes her contract rights were violated in a promotion action and that she was a victim of discrimination, for all intents and purposes the EEOC will not enforce or even consider the contract violation. In contrast, an arbitrator will look at both closely. Shuttling the employee who suspects discrimination off to the EEOC makes it harder for that employee to get relief.
Some unions think that the agency generated Report of Investigation (ROI) that employees get when they file a complaint with an agency EEO Officer are invaluable—and they are right. These investigations include affidavits from involved managers, statistical analyses, and copies of all the key documents related to the complaint. It is tough to get that kind of information out of a union grievance investigation. But all that means is that the union should negotiate for the right to get a full ROI from the agency even if the employee has chosen the grievance procedure over the agency EEO Officer. Check out NTEU 98 FSIP 52 for a good example of how to do that.
In fairness, if the union decides the employee’s complaint has no merit, it may make sense to keep it out of the grievance process just to save negotiated official time. Other valid reasons could be that the union does not have the funds to arbitrate the discrimination allegation or as a matter of policy it disagrees with the employee’s complaint, e.g., if the employee wants to establish quotas or do away with seniority.
But discrimination claims can be based on lots of reasons, e.g., race, gender, age, color, national origin, religion, marital status, sexual harassment, sexual orientation, disability, or even retaliation for having filed (or been supportive of) a prior EEO complaint—whether the complaint was the employee’s or someone else’s. It is foolish for a union to send its membership the message that the union is not there to help them in those matters. If anything, unions should be targeting each protected class with messages that it is eager to help them enforce their rights and including some examples of what those rights are in various situations.