The EEO Program Manager will assist the deciding official during the interactive process by providing only that medical information that is needed by the supervisor to address the reasonable accommodation request and/or obtain any necessary accommodation.
220.127.116.11.1 Maintaining Medical Documentation. Medical documentation received in connection with a reasonable accommodation request should be maintained in a confidential file, separate from any other personnel file, and clearly marked as medical confidential. It is recommended that the medical documentation be sealed (e.g., in an envelope clearly marked as medical confidential). In addition, confidential medical documentation should be appropriately secured (e.g., in a locked cabinet, drawer, or office). Further, access to this information should be limited to those individuals whose official duties require such access. In the event that medical documentation concerning a reasonable accommodation request is received by a manager, the documentation should be forwarded to the EEO Program Manager as required by this policy statement, and, if received via email, the incoming email should be deleted.
18.104.22.168 Time Frames for Processing Requests and Providing Reasonable Accommodations. TIGTA will process requests for reasonable accommodation and, where requests are granted, provide the reasonable accommodations, in as short a time frame as reasonably possible. If the accommodation cannot be provided within the timeframes set out below, the decision maker must inform the individual of the projected time frame for providing the accommodation. The time necessary to process a request will depend on the nature of the accommodation requested and the possible need to obtain supporting documentation.
The time limits set in these procedures are maximum processing times. It may not be necessary to take the full length of allowable time to provide a requested reasonable accommodation. Because unreasonable delay in providing a reasonable accommodation could constitute undue delay in violation of the Rehabilitation Act, deciding officials should act as quickly as reasonably possible in responding to requests for a reasonable accommodation.
Expedited processing: In certain circumstances, a request for reasonable accommodation requires an expedited review and decision in a time frame that is shorter than the 20 business days discussed below. A few examples of these circumstances include but are not limited by the following:
to enable an applicant to apply for a job. Depending on the timetable for receiving applications, conducting interviews, taking tests, and making hiring decisions, there may be a need to expedite a request for reasonable accommodation in order to ensure that an applicant with a disability has an equal opportunity to apply for a job. Therefore, OMS, BFS and managers need to move as quickly as possible to make a decision on the request.
to enable an employee to attend a meeting scheduled to occur shortly. For example, an employee may need a sign language interpreter for a meeting scheduled to take place in 5 business days.
Absent a need to obtain additional medical documentation and absent extenuating circumstances, the decision maker should process the request no later than 20 business days from the date the decision maker receives the request, and sooner, if possible. Since decision makers may need the full 20 business days to engage in the interactive process and collect all relevant information about possible accommodations, they should not delay beginning this process. Failure to meet this time frame solely because a decision maker delayed processing the request is not an extenuating circumstance.
If the decision maker believes that it is necessary to obtain medical documentation to process the request, the decision maker will make such request to the requestor as soon as possible after his or her receipt of the request for accommodation, but in any case, before the expiration of the 20-day period.
If the decision maker requests medical documentation, the 20-day period time frame is stopped until adequate medical information is received.
When adequate medical information is obtained, a decision on the reasonable accommodation request will be provided within 20 business days from the date the decision maker received the necessary documentation from the requestor.
Extenuating Circumstances: These are factors that could not reasonably have been anticipated or avoided in advance of the request for accommodation. "Extenuating circumstances" covers limited situations in which unforeseen or unavoidable events prevent prompt processing of an accommodation request. For example, TIGTA may not delay processing or providing an accommodation because a particular staff member is unavailable.
When extenuating circumstances are present, the time for processing a request for reasonable accommodation and providing the accommodation will be extended as reasonably necessary. All TIGTA staff is expected to act as quickly as reasonably possible in processing requests and providing accommodations. The following may be examples of extenuating circumstances:
There is a pending request to the employee for medical documentation.
The purchase of equipment needed for an accommodation may take longer than 20 business days under the Federal Acquisition Regulations.
Equipment must be back-ordered, the vendor typically used by TIGTA for goods or services has unexpectedly gone out of business, or the vendor cannot promptly supply the needed goods or services, and another vendor is not immediately available.
The requestor needs to work with equipment on a trial basis to ensure that it is effective before TIGTA buys it.
New staff needs to be hired or contracted for, or an accommodation involves the removal of architectural barriers.
Where extenuating circumstances are present, the decision maker must notify the individual, in writing, of the reason for the delay, and the approximate date on which a decision, or provision of the reasonable accommodation, is expected. Further developments or changes should also be promptly communicated to the individual in writing.
If there is a delay in providing an accommodation which has been approved, the decision maker must determine whether temporary measures can be taken to assist the employee, e.g., providing the requested accommodation on a temporary basis or providing a different form of accommodation on a temporary basis. In addition, the decision maker may take certain measures that are not reasonable accommodations within the meaning of the law (e.g., temporary removal of an essential function) if: (1) they do not interfere with TIGTA operations; and, (2) the employee is clearly informed in writing that they are being provided only on a temporary, interim basis. For example, there may be a delay in receiving adaptive equipment for an employee with a vision disability. During the delay, the supervisor might arrange for other employees to act as readers. This temporary measure would allow the employee to perform to the extent possible until the necessary equipment arrives.
If a delay is attributable to the need to obtain or evaluate medical documentation and TIGTA has not yet determined that the individual is entitled to an accommodation, TIGTA may provide an accommodation on a temporary basis. In such a case, the decision maker will notify the individual in writing that the accommodation is being provided on a temporary basis pending a decision on the accommodation request, including whether the employee has a qualifying disability.
TIGTA decision makers who approve such temporary measures are responsible for ensuring that all reasonable and necessary steps to promptly make a determination on the accommodation request.
22.214.171.124 Granting a Reasonable Accommodation Request. Once the decision maker determines that a reasonable accommodation will be provided, that decision should be communicated to the individual in writing. If the accommodation cannot be provided immediately, the decision maker should inform the individual of the projected time frame for providing the accommodation.
126.96.36.199 Denial of Reasonable Accommodation Request. Once the decision maker determines that a request for reasonable accommodation will be denied, s/he must issue a written memorandum to the individual denying the reasonable accommodation. A copy of this memorandum will be provided to the EEO Program Manager. The written memorandum should clearly state the specific reasons for the denial. If the decision maker has denied a specific requested accommodation, but has offered to make a different accommodation in its place (which was not agreed to during the interactive process), the denial statement should explain both the reasons for the denial of the requested accommodation and the reasons the decision maker believes that the offered accommodation will be effective. Reasons for the denial of a request for reasonable accommodation should include the following, where applicable (keeping in mind that the actual statement to the individual must include specific reasons for the denial):
The requestor does not meet the definition of an individual with a disability, as defined in Section 502 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA), as amended by the Americans with Disability Act Amendment (ADAA). The requested accommodation would not be effective; meaning it would not effectively remove a barrier to allow the requestor to perform the essential functions of his/her position.
Providing the requested accommodation would result in undue hardship. Before reaching this determination, the decision maker must have explored whether other effective accommodations exist which would not impose undue hardship and therefore can be provided. A determination of undue hardship means that TIGTA finds that a specific accommodation would result in significant difficulty or expense, or would fundamentally alter the nature of TIGTA's operations.
Medical documentation was inadequate to establish that the requestor has a disability and/or needs a reasonable accommodation.
The requested accommodation would require the removal of an essential function.
The requested accommodation would require the lowering of a performance standard.
The written memorandum of denial also informs the individual that s/he has the right to file an EEO complaint and may have rights to pursue a Merit Systems Protection Board (MSPB) appeal. The written memorandum should also explain TIGTA's procedures for informal dispute resolution. The EEO Program Manager can help the decision maker with this statement. The decision maker will coordinate with the Office of Chief Counsel prior to denying any request for accommodation.
All decisions on a denial request for a reasonable accommodation shall also be coordinated with the EEO Program Manager prior to issuance to the employee.
188.8.131.52 Informal Dispute Resolution. Requestors can request prompt reconsideration of a denial of a reasonable accommodation.
If a requestor wishes reconsideration, s/he should first request in writing within ten business days of receiving the written denial, that the decision maker reconsider the decision. The individual may present additional information in support of his/her request. The decision maker will respond to the request for reconsideration within five business days.
If the decision maker does not reverse the decision, the requestor may request in writing within ten business days that the second-level supervisor reconsider the decision. The second-level supervisor will respond to this request for reconsideration within ten business days.
Pursuing any of the informal dispute resolution procedures identified above, including seeking reconsideration from the decision maker and requesting reconsideration by the next person in the decision maker's chain of command, does not affect the time limits for initiating statutory claims. This means that the time periods for filing an EEO complaint or an MSPB appeal do not stop running while an employee is pursuing informal dispute resolution. In addition, an individual's participation in the informal dispute resolution process does not satisfy the requirements for bringing a claim under EEO or MSPB.
Official Time for Preparing EEO Complaints.
The EEO regulations require an agency to grant an employee reasonable amount of official time, if otherwise on duty, to prepare an EEO complaint and to respond to agency and EEOC requests for information. In addition, if the complainant has designated another agency employee as a representative, the Agency is required to grant the employee a reasonable amount of official time, if otherwise on duty, to prepare the complaint and respond to agency and EEO requests for information. Official time may only be granted to an employee while his/her complaint is in the administrative process.
What is a Reasonable Amount of Official Time?
“Reasonable” is defined as whatever is appropriate under the particular circumstances of the complaint, in order to allow a complete presentation of the relevant information associated with the complaint and to respond to agency requests for information. An employee’s right to official time to pursue his/her EEO complaint is not an unqualified right. It is restrained by legitimate management considerations, like business necessity.
The actual number of hours to which the complaint and/or
representative are entitled will vary, depending on the nature and complexity of the complaint and considering the mission of the Agency and the Agency’s need to have its employees available to perform their normal duties on a regular basis. The manager and the complainant should arrive at a written agreement as to the amount of official time to be used prior to the use of such time.
Reasonable time, as it pertains to preparation time (and not hearing time) is generally defined in terms of hours, not days. A reasonable amount of official time is only available during the administrative EEO complaint process, which may extend up through an EEOC hearing.
Requests for Official Time Procedure.
Below is the procedure for requesting and granting official time.
The employee/complainant in the pre-complaint process, or formal complaint process, a witness, and/or a complainant’s representative must provide to his/her first-level manager a written request for official time in connection with a complaint of discrimination; preferably within three to five days prior to the individual's need for the official time. (If the time frame is not met, a written explanation must be provided to the first-level manager indicating why the time frame was not met.) The EEO Program Manager should be informed of the request or denial of official time.
Upon receipt of the request, the manager should notify the employee/complainant, representative, and /or witness within a reasonable amount of time (preferable within two work days of the request) as to whether the official time requested has been approved or denied. This response must be provided in writing. (i.e, either an email or a memorandum). If the request is denied, in whole or in part, the management official must state in his/her written response why the request was denied. All requests and management responses for official time should be retained by the manager. The TIGTA EEO Program Manager should be kept apprised of all actions. Any EEO-related questions that management may have should be forwarded to TIGTA’s EEO Program Manager. Legal questions or concerns should be directed to the Office of Chief Counsel.
Questions and Answers.
Q: Can official leave be granted to complainants involved in EEO litigation in court?
A: No. Managers do not have authority to grant official time in the event an employee files a civil lawsuit in court. In civil actions, employees are required to use their own annual leave, compensatory time, and/or credit hours worked. Sick leave or court leave cannot be used.
However, should the employee prevail in a lawsuit, he or she may seek damages, which may include reimbursement for leave incurred in connection with preparation of the lawsuit.
Q: What are examples of the need for official time?
A: Official time may be granted for the following:
Preparing and presenting a complaint or perfecting an appeal.
Attending meetings and hearings with the Treasury Complaint Center, Office of Civil Rights and Diversity, and Equal Employment Opportunity Commission officials.
Preparing for meetings, conferences, and hearings outside of the above actions.
Equal Employment Opportunity
Federal law provides individuals with equal opportunity in all areas of employment regardless of the individual’s race, color, sex, religion, national origin, physical/mental disability, and/or age. The Federal Government also has policies that ban discrimination based on a person’s sexual orientation, genetics, marital status, and/or parental status. Although these are not recognized bases of discrimination under Federal anti-discrimination statutes, complaints of discrimination on these bases may be filed and processed under the Agency’s EEO complaint process and procedures. The Equal Employment Opportunity Commission (EEOC) administers and enforces Federal laws prohibiting employment discrimination in both the public and private sectors. Listed below are some of the laws and regulations that govern the Federal EEO process.
Title VII of the Civil Rights Act of 1964
Civil Rights Act of 1991
EEOC Regulations (29 C.F.R. Part 1614)
EEOC Management Directive 110 (MD-110)
EEOC Management Directive 715 (MD-715)
Rehabilitation Act of 1973
Equal Pay Act of 1963
Age Discrimination in Employment Act (ADEA) of 1967
TIGTA’s EEO Program is designed to promote fair and equitable employment opportunities for all employees and applicants for employment. The program fosters and promotes a discrimination-free work environment by ensuring that all employees understand the avenues available for reporting discrimination and addressing workplace diversity issues. TIGTA is committed to eliminating barriers to equal employment within the workplace and to resolving workplace issues at the lowest possible levels.
In accordance with EEOC MD-110 and MD-715, as well as 29 C.F.R. § 1614.102(b)(4), TIGTA has an EEO Program Manager. Pursuant to 29 C.F.R. § 1614.102(c)(1-4) TIGTA’s EEO Program Manager is responsible for the following:
(l) Advising the head of the agency with respect to the preparation of national and regional equal employment opportunity plans, procedures, regulations, reports and other matters pertaining to the policy in 1614.101 and the agency program.
(2) Evaluating from time to time the sufficiency of the total agency program for equal employment opportunity and reporting to the head of the agency with recommendations as to any improvement or correction needed, including remedial or disciplinary action with respect to managerial, supervisory or other employees who have failed in their responsibilities.
(3) When authorized by the head of the agency, making changes in programs and procedures designed to eliminate discriminatory practices and to improve the agency's program for equal employment opportunity.
In addition to these regulatory responsibilities, TIGTA’s EEO Program Manager is also responsible for:
Implementation of a continuing Affirmative Employment Program (AEP) to
promote equal employment opportunity and to identify and eliminate discriminatory practices and policies.
Administration of the Special Emphasis Programs (SEP) to include, Disability, Federal Women’s, Black Employment, Asian American-Pacific Islanders, Hispanic, and Native American programs.
Administration of the Reasonable Accommodation Program.
Administration of the Alternative Dispute Resolution (ADR) Program.
Providing consultative services to the Inspector General (IG), TIGTA managers, and employees.
Providing updates to the IG and senior-level management regarding new issues, trends and laws regarding EEO and diversity.
Implements and ensuring compliance with new guidance and laws regarding EEO and diversity.
Providing guidance and recommendations for resolving workplace disputes before and during informal and formal EEO complaint processing.
Developing and conducting training to agency personnel ensuring compliance with federally mandated programs, e.g. sexual harassment.
Agency EEO Officials Cannot Serve as Representatives. In accordance with MD-110 Chapter 1, Section VI and 29 C.F.R. § 1614.605(c), TIGTA’s EEO Program Manager cannot serve as a representative for complainants or agencies in the processing of discrimination complaints. The EEO Program Manager is required to be unbiased and merely collect the facts surrounding a complaint.
Employee Responsibilities. TIGTA employees are encouraged to resolve differences with management at the lowest level possible, including concerns involving alleged discrimination. The efforts by the employee and management to informally resolve conflicts do not replace the EEO process.
There are statutory guidelines governing the time frames for bringing an allegation of discrimination to an EEO Counselor, and employees are advised to ensure that they are aware of and adhere to the appropriate requirements. All TIGTA employees who believe they have been subjected to discrimination must contact the appropriate EEO Counselor within 45 calendar days of the alleged incident for the complaint to be considered timely.
Management Responsibilities. All TIGTA managers are responsible for taking the necessary steps to eliminate and/or prevent discrimination in the workplace. Fostering dignity and respect within the workplace is an essential part of eliminating and preventing discrimination. This includes promoting and supporting special emphasis programs and awareness activities.
Managers are responsible for responding promptly to allegations of discrimination and/or sexual harassment in accordance with policy and procedures, and for implementing immediate and appropriate action to address the situation.
In accordance with MD-715, managers are required to participate and attempt to resolve complaints at the lowest level possible to include: informal meetings, ADR, and other alternatives when deemed appropriate.
Equal Employment Opportunity Process.
TIGTA’s EEO process follows the provisions in 29 C.F.R. Part 1614 and MD-110. The EEO process goes through several stages.
Informal Processing (Pre-Complaint).
The informal complaint processing or pre-complaint processing starts the moment a complainant makes initial contact with an EEO Counselor. EEOC MD-110 and 29 C.F.R. § 1614.105(a)(1) outline the requirements and statutes associated with initiating a complaint of discrimination.
TIGTA utilizes the Internal Revenue Service (IRS) EEO pre-complaint (counseling) process, including its ADR Program, under a Memorandum of Understanding dated April 20, 2007. The first part of the process generally requires that an allegedly aggrieved party must make initial contact with an IRS EEO Counselor within 45 days of the alleged discriminatory action or within 45 days of becoming aware of the alleged discriminatory action (29 C.F.R. § 1614.105(a)(1)). In TIGTA offices, a contact list of EEO Counselors along with a poster captioned “Equal Employment…It’s the Law” Poster 11471, have been posted and displayed in conspicuous places, and on the Agency intranet web site, in the Special Emphasis Programs and Equal Employment Opportunity section, for all employees to have access to the information.
When contacted, the EEO Counselor will set up an initial interview with the complainant in order to gather information regarding the alleged discrimination and advise the complainant in writing of his/her rights and responsibilities in the process. The counseling period is 30 days, but may be extended up to an additional 30 days with the agreement of the complainant. During the counseling process the complainant has the right to maintain or waive his/her anonymity. The Counselor is a neutral party who will conduct a limited inquiry into the facts and circumstances and attempt to find a resolution that is acceptable to the parties. The Counselor will also explore the possibility of mediation. The Counselor is not an advocate for either the complainant or the Agency and cannot be compelled or allowed to represent or appear on behalf of the complainant or the agency at an EEOC hearing.
Mediation is the only ADR process available to TIGTA employees in the pre-complaint process. The Counselor may offer the complainant the opportunity to participate in the ADR process, especially if it appears that a resolution of the matter is possible. The Counselor will advise the complainant that his or her participation in the ADR process is voluntary and he or she has a right to representation during the ADR process. The complainant may accept the offer of ADR or refuse and continue with counseling. Should the complainant accept the offer, he/she shall be asked to sign an agreement extending the counseling process for up to 60 days in order to provide adequate time to engage in the mediation process. The Counselor shall then take the necessary steps to contact all interest parties and put them in contact with a neutral, third-party mediator. Resolution of the matter will not be attempted through regular EEO counseling if the complainant elects to participate in ADR.
Through ADR the parties attempt to reach a settlement of the alleged disputes. If the matter is not settled, the EEO Counselor will hold a final interview with the complainant and provide him/her with a written Notice of the Right to File a Discrimination Complaint (Notice), including a copy of Department of the Treasury Form Number TDF 62-03.5. The Notice will inform the complainant of his/her right to file a formal complaint of discrimination within 15 days of receipt of the notice, identify the agency official with whom the complaint must be filed, and of his/her obligation to inform the agency if he/she is represented.
Formal Complaint Process.
The complainant has 15 days from his/her receipt of the notice of Individual Complaint of Employment Discrimination with the Department of the Treasury to file a formal complaint. The Treasury Complaint Center (TCC) at its discretion may dismiss a claim (29 C.F.R. § 1614.107) of discrimination that is received untimely (i.e. outside the 45-calendar-day window).
The formal complaint must be a signed statement from the complainant or his/her representative containing the complainant’s or representative’s address and telephone number, and must be sufficiently precise to identify the complainant and the agency, and describe generally the agency action or practice, which form the basis of the complaint. (29 C.F.R. § 1614.106). Treasury employees may file a formal complaint using Treasury Form TDF 62-03.5.
*Note – The only issues that can be addressed in a formal complaint of discrimination are those that the complainant raised in the pre-complaint (counseling) process.
Once the Agency accepts a claim of discrimination for investigation, it will assign the complaint to an EEO Investigator through the TCC. The Agency is required by law to complete the investigation within 180 days from the date the complainant filed the complaint of discrimination. If the original complaint is amended or consolidated, the Agency must complete the investigation within the earlier of 180 days after the last amendment to the complaint or 360 days after the filing of the original complaint. A complainant may request a hearing on the consolidated complaints any time after 180 days from the date he/she filed the original complaint. (29 C.F.R. § 1614.606).
The EEO Investigator is to conduct a thorough, impartial, fact-finding investigation and provide enough information and documentation in the investigative file for a reasonable fact-finder to make a decision based on the merits of the complaint. The EEO Investigator’s role is that of a neutral party who gathers the facts available and presents a completed case for review by both parties. The EEO Investigator is not an advocate for either the complainant or the Agency, nor can he/she be compelled or allowed to represent or appear on behalf of the complainant or the Agency at a hearing.
Under 29 C.F.R. § 1614.108, agency personnel are required to respond fully and in a timely manner to an EEO Investigator’s request for documents and/or testimony. Should the Agency or its employees fail to show good cause for not responding fully and/or timely to an EEO Investigator’s requests for information and/or testimony, the EEOC AJ may draw an adverse inference that the requested information or testimony reflects unfavorably upon the agency. See 29 C.F.R. § 1614.108(c)(3) for further details.
It is imperative that TIGTA personnel involved in EEO complaints of discrimination comply with the request(s) of the EEO Investigator assigned to the case.
The Office of Chief Counsel represents the Agency in these types of matters. All TIGTA management officials must coordinate with the Office of Chief Counsel with respect to requests for documents and/or declarations/affidavits received from an EEO Investigator.
The ADR may be offered to the complainant by either TIGTA or TCC after a formal complaint is filed. If the parties enter into ADR, the time period for processing the complaint may be extended by agreement for not more than 90 days. If the dispute is not resolved, the complaint is processed within the extended time period. For additional discussion of ADR during the formal complaint process see (200)-184.108.40.206.
70.4 Alternative Dispute Resolution 70.4.1 Summary.
The ADR techniques are widely used by Federal agencies to resolve workplace disputes in an expeditious, efficient, and cost effective manner. EEOC regulations require Federal agencies to make ADR available during the pre-complaint and formal complaint processes. All TIGTA managers and supervisors have a duty to cooperate in ADR during the EEO process. Once TIGTA, an EEO Counselor, or the Treasury Complaints Mega Center has determined that the issues in a complaint are appropriate for ADR and has offered ADR, if the complainant accepts the offer in the administrative complaint process, a management official must participate in the ADR session. In addition, EEOC policy requires that the use of ADR be governed by the following core principles: (1) furtherance of the agency’s mission; (2) fairness (which requires voluntariness, neutrality, confidentiality, and enforceability); (3) flexibility; (4) training; and, (5) evaluation.
Mediation is the only ADR process available to TIGTA employees and applicants for employment. Mediation offers the parties an opportunity to reach a mutually acceptable resolution to the disputed issues through open and confidential discussions of their interests and concerns with the assistance of a neutral third-party mediator.
In accordance with TIGTA goals and objectives, it is desirable to achieve a discrimination-free workplace that promotes trust, dignity and respect amongst all employees. The ADR is a viable means to achieving these goals and fosters a sense of willingness to listen, understanding of issues and complaints, and identifying and correcting possible behavioral/procedural discrepancies within the organization.
70.4.2 Statutes, Regulations and EEOC Directives and Policies.
The Administrative Dispute Resolution Act of 1996, 5 U.S.C. §§ 571-584 – “Congress finds that (1) an administrative procedure that is intended to offer a prompt, expert, and inexpensive means of resolving disputes as an alternative to litigation in the Federal courts; (2) administrative proceedings have become increasingly formal, costly, and lengthy resulting in unnecessary expenditures of time and in a decreased likelihood of achieving consensual resolution of disputes; (3) alternative means of dispute resolution have been used in the private sector for many years and, in appropriate circumstances, have yielded decisions that are faster, less expensive, and less contentious; (4) such alternative means can lead to more creative, efficient, and sensible outcomes; (5) such alternative means may be used advantageously in a wide variety of administrative programs; (6) explicit authorization of the use of well-tested dispute resolution techniques will eliminate the ambiguity of agency authority under existing law; (7) Federal agencies may not only receive the benefit of techniques that were developed in the private sector, but may also take the lead in the further development and refinement of such techniques; and, (8) the availability of a wide range of dispute resolution procedures, and an increased understanding of the most efficient use of such procedures, will enhance the operation of the Government and better serve the public.”
29 C.F.R § 1614.102 Agency Programs (29 C.F.R. § 1614.102) – Among other things, provides that: “(a) Each agency shall maintain a continuing affirmative program to promote equal opportunity and to identify and eliminate discriminatory practices and policies. In support of this program, the agency shall: (3) Conduct a continuing campaign to eradicate every form of prejudice or discrimination from the agency's personnel policies, practices and working conditions. (b) In order to implement its program, each agency shall: (1) Develop the plans, procedures and regulations necessary to carry out its program; and (2) Establish or make available an alternative dispute resolution program. Such program must be available for both the pre-complaint process and the formal complaint process.”
29 C.F.R. §1614.108 Investigations (29 C.F.R.§ 1614.108) – Provides that: “(a) The investigation of complaints shall be conducted by the agency against which the complaint has been filed. (b) In accordance with instructions contained in Commission Management Directives, the agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Agencies may use an exchange of letters or memoranda, interrogatories, investigations, fact-finding conferences or any other fact-finding methods that efficiently and thoroughly address the matters at issue. Agencies are encouraged to incorporate alternative dispute resolution techniques into their investigative efforts in order to promote early resolution of complaints.”
Voluntary Settlement Attempts (29 C.F.R § 1614.603) – Provides that: “[e]ach agency shall make reasonable efforts to voluntarily settle complaints of discrimination as early as possible in, and throughout, the administrative processing of complaints, including the pre-complaint counseling stage. Any settlement reached shall be in writing and signed by both parties and shall identify the claims resolved.”
EEOC Management Directive - MD-110 Chapter 3 – States in part, that: “EEOC's revised regulations at 29 C.F.R. § 1614.102 (b) (2) require agencies to establish or make available an alternative dispute resolution program. The ADR program must be available during both the pre-complaint process and the formal complaint process. The Commission has developed an ADR Policy which sets forth core principles regarding the use of ADR. A copy of the EEOC's ADR Policy Statement is included as Appendix H to this Management Directive. EEOC regulations extend the counseling period where ADR is used. See § 1614.105(f).”
EEOC Management Directive 715 – States in part, that: “This Directive provides policy guidance and standards for establishing and maintaining effective affirmative programs of equal employment opportunity under Section 717 of Title VII (PART A) and effective affirmative action programs under Section 501 of the Rehabilitation Act (PART B). The Directive also sets forth general reporting requirements (PART C).” This directive supersedes Management Directives 712 – 714.
EEOC facts on the Federal sector ADR.
70.4.3 ADR in the Administrative Complaint Process.
220.127.116.11 ADR in Pre-Complaint (Counseling) Phase. TIGTA utilizes the IRS EEO pre-complaint (counseling) process, including its ADR program, under a Memorandum of Understanding dated April 20, 2007. When a complainant contacts an IRS EEO Counselor concerning an alleged discriminatory act(s), the EEO Counselor will inform the complainant of the availability of ADR in lieu of traditional counseling. Participation in the IRS ADR program is voluntary for the complainant. The complainant does not waive his/her right to file a formal complaint of discrimination at a later date by agreeing to participate in ADR.
Mediation is the only ADR method available during the EEO complaint process for TIGTA employees. If the IRS EEO Counselor determines that the dispute is appropriate for mediation and the complainant agrees to mediation, resolution of the dispute will not be attempted through traditional counseling. The EEO Counselor and the TIGTA EEO Program Manager will coordinate the date, time, and location of mediation with the complainant and his/her representatives, (if any), the appropriate TIGTA manager/supervisor, TIGTA Counsel, and the mediator. The IRS ADR Program uses only neutral, third party mediators who are certified and trained in mediation. If the dispute is resolved with the mediator’s assistance, the parties will enter into a written settlement agreement. If not, the counseling phase will proceed.
18.104.22.168 ADR in the Formal Complaint Process. The TIGTA EEO Program Manager may determine that ADR is appropriate at any time after a formal complaint is filed. The TIGTA EEO Program Manager may offer ADR at any time after the filing of the complaint until initiation of the investigation. If TIGTA offers ADR after a formal complaint is filed, and the complainant agrees to participate, the TIGTA EEO Program Manager will obtain a signed authorization from the complainant extending the formal process for up to 90 days and forward the authorization to the TCC. This notification will take place within 48 hours from when ADR is elected and all time frames set forth in 29 C.F.R. Part 1614 for processing complaints are to be tolled.
TIGTA will provide a mediator or other neutral party, including contract mediators, agency mediators, a member of the shared neutrals program, or any mediator deemed appropriate for the particular situation, as long as there is no conflict of interest.
If resolution is not achieved, the TCC will be notified and the complaint will be reinstated at the point that processing was stopped.
After an investigation is completed, the TCC will evaluate the case evidence and the prior resolution attempts to determine whether or not additional ADR would be appropriate and beneficial.
If the TCC determines that ADR is appropriate, an appropriate official from the TCC will consult with the TIGTA EEO Program Manager prior to offering ADR to the complainant. All parties must agree to participate in the ADR process, which, at this stage, will be a resolution conference.
The resolution official may be a contract mediator, shared neutral, an employee of another Federal Agency, or a member of the TCC staff, who has not been involved in the processing of the complaint.
Consistent with MD-110, voluntary settlement throughout the administrative process is encouraged. Therefore, TIGTA may offer the ADR process even after a final agency decision or a hearing has been elected. TIGTA is required to notify the parties that have jurisdiction over the complaint at that period in time in order to conserve resources.
Decisions to engage in an ADR process at the formal stage may not be made by the subject of a complaint of discrimination. If the complainant agrees to participate, she/he will be advised that participation is voluntary and of the type of ADR being used, and must agree to the suspension of the formal process while ADR proceeds.
Regardless of what type of ADR is used, all parties will be notified by the EEO counselor and/or resolution official of the following: