THE LONG LOST EEO REMEDY
A cardinal rule of filing an EEO complaint, whether as an employee or employee representative, is to request every potential remedy available. That raises the potential cost to the agency should it lose, and the bigger the liability the more likely an agency is to settle. A recent decision out of the EEOC highlighted an available remedy that is almost never pursued in employees’ complaints. In this case, the agency filled a 120 day temporary promotion slot without advertising the job. The employee alleged racial discrimination and won back pay as well as compensatory damages—the usual remedies. However, …
EEOC went a step further by also ordering the agency to change the process it uses to fill 120 day temporary promotion opportunities. The agency howled in protest claiming EEOC was wrong to demand that it always advertise the jobs rather than let managers secretly hand-pick favorites, who in this particular case were white employees. The agency claimed that such openness surely violated OPM regulations.
EEOC slapped down the first objections by pointing out that the agency could not identify a single sentence in OPM regulations which bars it from advertising temporary promotions. As for the former claim, EEOC noted that its regulations allow it to not only provide the employee remedies to make up for what s/he lost in the past, but also to order agencies to adjust their HR procedures to prevent another similar civil rights violation. More specifically, it wrote, “Pursuant to 29 C.F.R. § 1614.501(a)(2), to remedy a finding of discrimination, the Commission may order the Agency to provide full relief, to include corrective, curative or preventive actions to ensure that violations of the law similar to those found will not recur.”
Obviously, the agency lost a chunk of the discretion most agencies have to fill at least short-term promotion opportunities as they see fit. That is a far bigger loss than the money it will pay the employee who alleged and proved discrimination.
So, whether the EEO charge has to do with a senseless promotion evaluation process, an arbitrary performance appraisal procedure, or a phony-baloney performance award mechanism, employees should always request an order that the agency reform its system to prevent similar abuses. For details, check out Kristofer D., v. Dr. Mark T. Esper, Secretary, Department of the Army, EEOC No. 0720170019 (August 2018)