GOVERNMENT INVESTIGATIONS:
TURNING YOUR POTENTIAL ADVERSARY INTO YOUR ALLY
March 2-4, 2005
Laura Todd Johnson
University of Arizona
Tucson, Arizona
Anthony Walesby
University of Michigan
Ann Arbor, Michigan
I.
Introduction
It’s quite possible that your institution is currently facing an investigation by one (or
possibly even more) of several agencies such as the U.S. Equal Employment Opportunity
Commission (EEOC), the U.S. Department of Education’s Office of Civil Rights (OCR),
or one of the various state agencies.
Unfortunately, this is typically an adversarial relationship where the agency acts as the
agent of bad news, trying to determine if the claims against your institution are true. In
this situation, it seems almost natural to view the government as your opponent, as your
adversary; but don’t resign yourself yet. It is entirely possible to turn this situation into
one where the government actually becomes your ally in the process.
Knowing the agency you’re dealing with, how it operates, and what it prefers in the
course of its investigations are prime factors that will increase your chances of success in
winning over an ally.
What follows here is a look at making allies within these agencies; how to cultivate that
type of relationship; and how to keep it intact even in those problematic situations that
are bound to occur.
What we won’t be examining here, however, is a step-by-step analysis of what to do
when these agencies begin their investigations. For many, the basic steps of this process
are probably already familiar. For a more comprehensive look at these steps and
procedures, please refer to the NACUA publications, What To Do When the EEOC
Comes Knocking on Your Campus Door (2004) by Laura Todd Johnson and Linda
Schoonmaker and What to Do When the OCR Comes to Campus (to be available in April
2005) by Cynthia Jewett and Lisa Rutherford.
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II.
Cultivating Allies: Winning Over Our Potential Adversaries
It is easy to view the government as an adversary right from the beginning; after all, the
investigator is the one coming to you looking for information regarding the complaint
that has been filed against your institution. But, really, the investigator’s (and indeed the
agency’s) position is—or should be—one of neutrality. Their mandate is to support that
which is in the public interest; accordingly, your institution has every right and an equal
interest in proving that it truly has acted in the broad public interest. And in order to
prevail on that point, and to do so with a minimum of controversy and antagonism, it is
best to demonstrate to the investigator the compelling reasons why he or she could, with
clear conscience and complete understanding, become an ally or even an advocate of
your view.
We all know and understand the reasons for, as well as the basics of, cultivating this type
of relationship. But because it can never hurt to step back from time to time to remind
ourselves of the basics, we thought it wise to include the following practical points as a
refresher. These points are common sense, yes, but we cannot overestimate their value.
You may be surprised how much of a difference your interaction with an agency
investigator can have on the outcome of your case. If you have bad facts, you will most
likely lose your case regardless of your relationship; however, in those “too close to call”
type cases, you can tip the decision in your institution’s favor. Even if you have bad
facts, your actions during that particular case can either help or hinder you in further
cases. It is not uncommon to get the same investigator over and over again and how you
act in one case will carry over in all others. Once you have established that you respect
the investigator and his or her agency, even disagreements down the road can be easier to
handle between the two of you.
A.
Convince your investigator and you may find that not only do you have an ally,
you’ve got a strong advocate on your side. Don’t forget that agency investigators
may often have to make their case internally, one way or the other, to those who
supervise them. There’s probably no better way to win over your investigator
than to be fully prepared with everything that he or she will need, including a
balanced assessment of your institution’s course of actions. The ideal situation is
one where you’ve fostered a relationship that enables the agency investigator to
argue internally on your institution’s behalf if the need arises.
B.
Remember the importance of praising the complainant, if at all possible. While
you may have to raise legitimate concerns that the university had about him, it is
also wise to present a balanced view to the extent possible. Can you include the
complainant’s accomplishments to show institutional recognition? Can you state
that many in the workplace found the complainant easy to work with? Can you
include that the complainant expressed admirable dedication for his studies in a
particular area? Resist the temptation to portray the complainant as the “bad
guy,” the one who should not be believed, the one who must be lying. You are far
better off to suggest that the complainant is “unfortunately mistaken” rather than
to blatantly label him a liar. By tempering your response with praise where it is
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due and a balanced viewpoint, your investigator will appreciate the institution’s
reasonable perspective.
But in those instances where the complainant really is not all that credible, take
care to use a soft approach. Language such as “our administrators were reluctant
to conclude (or had no choice but to conclude) that the complainant willfully
violated university policy when she…” exhibits a balanced perspective and
generally carries more weight with the investigator than strong-handed efforts to
discredit and attack the complainant at every turn.
C.
Ensure that the investigator has a full understanding of the workings of your
institution, the particular departments involved, the funding of the relevant
positions, the interrelationship between particular positions or offices, and other
key areas. For some investigators at the EEOC, for example, the world of higher
education (albeit in all its glory) is simply foreign. It may be up to you to help
those investigators understand that their standard approach to investigation in the
corporate environment may not work well here. Make sure that the investigator
sees you as the first resource for necessary, helpful, or explanatory information.
For some investigators at OCR, they may know more about higher education, but
still not be familiar with exactly how your particular institution operates. To help
facilitate this understanding, at the beginning of the investigation you should have
sent the investigator a representation letter. This is vital because some
investigators, especially newer ones, can be tempted to call your officials on their
own and without your knowledge in their zeal to investigate the case. As you
establish your relationship with the investigator, you can weave in your
conversations how different you find academic institutions from other places you
may have worked. This starts to establish an understanding in the investigator’s
mind that can eventually help your case. What the investigator may have
attributed to discrimination, may, in his or her mind, now be attributed to the
different ways universities operate when compared to business, for example.
D.
What your mother said is true: never underestimate the importance of kind,
understanding, and sympathetic words. They will prove to be a profound
investment.
E.
Remember how important the story is. Keeping your focus on the story—rather
than the law—is often the most effective approach when dealing with an agency
investigator. But do beware of overzealousness in your story telling. Despite
how well or persuasively you may have captured the story in writing, if you can’t
back it up with credible witness testimony or documentation, it’s time to step back
and edit. You won’t be effective at winning an ally if you’re viewed as one who
exaggerates or takes liberties with the facts. If your story is very bad, sometimes
it’s best not to even try to tell it. Once you have assessed the situation and you
realize you have a major problem, you can always settle with the complainant.
This can prevent you from losing credibility with the investigator and the agency,
which can hurt you in the future. Also, by settling the case, you are indirectly
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sending the message to the investigator that you know what you are doing and are
taking proactive steps to address the situation. If you decide to settle, remember
that it’s best to keep the agencies from being a party to the agreement. The
agreement is between the institution and the complainant. In contrast, if you
always put forth an aggressive defense for each case, the investigator may start to
discard your position as a standard denial.
F.
Take your institution’s obligation to preserve records seriously, and issue
whatever directives are necessary to insure that your obligation is met. While you
may at some point elect to refuse an agency’s request for documents, i.e., if the
request from the agency is undisputedly too broad, you certainly never want to be
in a position where your institution failed to retain or discarded pertinent records
or documentation during an investigation. Be mindful, however, that your
decisions on producing records or documents must be guided by which agency
you’re dealing with; remember, while the EEOC has subpoena power, the OCR
does not.
G.
Keep in mind that there are some times when politely keeping your distance is not
to your benefit. If an agency investigator is at your campus for an on-site visit,
resist that professional urge to give your investigator his or her “space.” Don’t
view an on-site negatively; on the contrary, utilize every possible moment of it to
strengthen your relationship with the investigator. Make the most of the
inevitable downtime, lunch, departure, and other conversations. Use those
opportunities to show the investigator how committed the institution is to
compliance and how willing you are to provide whatever may aid the investigator
in ascertaining the truth.
H.
Remember the wisdom in admitting to just plain bad management. If the situation
warrants it, go ahead and admit that the situation could have been handled better.
There is no downside to an honest admission that improvements could have been
made. By acknowledging that your institution isn’t perfect and that it made some
management mistakes along the way, you’re establishing your own credibility.
And by doing that, your chances increase markedly that you will turn this one
potential adversary—the government investigator—into your ally. In this
approach, you are again establishing the differences that can exist between
institutions of higher education and the business world. As mentioned above, if
you have been commenting on how, in general, a university operates, you may be
in a better position to make an argument that the investigator will agree with later
down the road. We have all probably had the case where the employee has
received outstanding job evaluations for years and years up until the point the
employee is terminated for poor job performance. The good evaluations were not
truly reflective of the job performance, but the supervisor did not want to write
anything negative about the employee in the hope that the employee would
improve. The investigator will have, courtesy of the complainant, ten years of the
highest job rating possible and a copy of the termination letter which outlines the
employee’s years of poor job performance. What is the legitimate,
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nondiscriminatory reason for the termination? If you have established, either
during this case or in earlier ones, just how different a university can be, the
investigator may be more willing to believe you despite the job evaluation
evidence.
III.
Wading into Uncertain Waters: Avoid Being Dragged Under in These Problematic Areas
With the basics above, we’ve laid the groundwork for cultivating and maintaining an
amicable relationship with the agency and ideally even turning the agency into your ally.
Invariably, though, there will be times when some, shall we say, problematic moments
arise. You know what we’re talking about: those moments in your case where the
“wince” factor is high; where you might expect the agency will have a piqued interest; or
where your degree of uncertainty about just what is required of you begins to elevate.
Can you turn the government, your potential adversary, into your ally at those junctures?
Let’s take a look.
A.
The “Wince” Factor
In your own investigation of a discrimination complaint at your institution, you
may find yourself wincing at the very facts before you. Was that phrase actually
said? Was that action really taken? Or perhaps you found yourself wincing far
earlier, when you took that call months ago from the department manager, the
dean, or your human resources department. Regardless, the same question arises:
how, in these difficult situations, do you maintain or continue to cultivate the
government’s ally status on your institution’s behalf?
In the following selected scenarios, we examine some options to help keep the
tide of favor from turning against you.
1.
When your student or employee visited your internal EO office repeatedly,
but never filed a formal complaint
At first blush, we might ask: why wince? But the reasons quickly become
clear. First of all, the agency may very well consider that your institution
has put form over substance, has ignored clear notice of a problem or,
worse yet, has dissuaded an individual from lodging a complaint.
Similarly, the agency may view that the institution didn’t take a formal
complaint from that individual precisely so that it would not have to
proceed forward with an investigation.
In those circumstances where the complainant, either a student or an
employee, visited your institution’s EO office repeatedly, but never did
follow through by filing a “formal” complaint, you have a number of
things to consider. Aside from how you’ll handle this or address this in
your position statement, you’ll want to inquire internally as well. Is there
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a problem? Is your EO office requiring a level of formality that is too
high? Should more have been done when the complainant made her
second visit to the EO office? Did the EO office advise the complainant
about the institution’s non-retaliation clause in its procedures? You need
to show that while the complainant may have decided not to file an
internal complaint, she had every opportunity and was well aware of the
procedures and the “no retaliation” stance of the university. Remember,
your institution is on notice whether the individual “files a complaint” or
not. What records are kept of those informal visits? The obligation to
take action can come into play immediately. If no action took place,
you’ll have to determine whether any retraining of staff may be warranted.
Next, when considering what strategy to use in this circumstance when
responding to the related government inquiry, it may be best to focus on
the facts that the EO office gave the individual ample opportunities to
formalize her complaint; the EO office provided her with the applicable
policies detailing the investigative process at the institution; and ultimately
the individual chose not to avail herself of the process. If the facts of your
particular situation allow, it may be prudent to emphasize that the EO
office affirmatively encouraged the individual to invoke the process, or
that the individual never did evidence that she considered the matter to be
a serious one that even warranted action. To the extent your institutional
record for these inquiries demonstrate, it would be wise to show the
agency that your EO staff remained ready and willing to take the
complainant’s concerns to the next appropriate level. You may want to
attach copies of your website pages to your response to the agency as an
exhibit to show the wealth of information and resources your institution
makes available to its employees and students. By showing all the entry
points into the internal grievance process (i.e., websites, handbooks, etc.),
you reveal your institution’s commitment and understanding of civil rights
issues. This, in turn, demonstrates your credibility.
2.
When you uncover a real problem but not the one alleged by the
complainant
Though we always remain hopeful that this won’t be the case, from time
to time you may find that a real problem exists, though it’s not the one
complained about by the complainant. You may find in the course of your
investigation that discrimination actually did occur – that, for example, a
supervisor did terminate a staff member for a discriminatory reason. If,
however, the employee alleged sex discrimination, and you’ve uncovered
that the supervisor may have terminated the employee because of her age,
you’ve got some work ahead of you.
Internally, what do you do? Well, certainly, you must take prompt,
effective, remedial action to address the unlawful conduct you uncovered.
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Your institution needs to take affirmative steps to right the wrong, so to
speak. Any adverse action taken may need to be reversed. Discipline
would be warranted, as would training.
But how, then, do you respond in your position statement to the agency?
Remain firm, first of all, that the alleged discrimination did not occur. If
you have taken remedial action for the unalleged discrimination and
believe that you should flag that action in the position statement, then you
should certainly acknowledge that the complainant’s charge gave the
institution an opportunity to closely evaluate or scrutinize the work
environment (or the management style) and that it was prudent to take
such action. You may want to state, if appropriate, that managers may
need to bolster their management techniques and, thanks to this complaint,
steps will be taken to do so. You can use language in the position
statement and your interaction with the investigator that does not admit to
discrimination, but rather conveys that you addressed a situation once you
became aware of it.
Do not underestimate the importance of admitting the need for action and
showing what was done to redress the situation. The potential benefit of
earning the government’s allegiance to your institution through this
demonstration of forthright action and credibility should be obvious.
3.
When you learn that a university official actually made direct evidence
statements revealing discriminatory bias
Ouch. Yes, even in academia, there exists the possibility that “direct
evidence” discriminatory statements may escape the lips of even the most
highly trained or well-educated individuals. Put another way, it happens.
But what’s the best way to handle them? Deciding the best course of
action in this sort of situation depends greatly on what was said and who
was alleged to have said it. There may be situations where, if the
complainant alleges that certain remarks were said and they were said, you
may want to just own up to them. It’s never comfortable to have these
statements come to first light in an agency investigator interview. Take
care, however, to make sure you know the exact language used. It may be
that while the uttered remark is similar to the alleged remark, the two were
not identical; indeed, one might indicate true bias and the other might
simply be rude. The best course might be, in that case, to deny the
comment if it’s not exactly what was said, then try to win the case on the
facts and hope the actual comment takes a back seat.
Then shift your focus to how those remarks simply don’t rise to the level
of either harassment or discrimination. If the facts allow, make the stray
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remarks argument. And, if you can, show that the remark or remarks were
isolated, merely an aberration.
Admitting the infraction is wisest if you frame it in the context of a respect
issue, not a discrimination issue. Follow it up with an assertion that the
individual who made the comments has been (or will be) immediately
reprimanded and trained. Assert also that special care will be taken to
ensure that no further transgressions will occur. You can also highlight
the institution’s policies addressing respect so that the agency investigator
sees the distinction between less than respectful behavior and actual bias,
another helpful approach in winning the agency over as your ally.
4.
When a complainant’s allegation addresses a limited time scope, but you
learn of the same problem outside that scope
You can turn this wincing moment into a moment of relief. It is most
certainly fair to limit your response to the scope of the complaint. But be
certain, absolutely certain, to handle the problem internally and swiftly.
5.
When your case hinges upon the argument that there has been no policy
violation and you uncover another unrelated policy violation
We’re all probably familiar with the situation where our response to the
government is that our policies required us to take the action that we did
(actions which then gave rise to the complainant’s allegations). And we
all certainly know that it’s important to make sure that we have
consistently followed that policy so that the complainant cannot later
argue that the policy was selectively applied to him but not to other nonprotected individuals. There exists, however, a possible situation that you
may face related to policy violations that may cause you to wince yourself.
That’s the case where, after you’ve argued policy, policy, policy, you
realize that others somewhere down the line haven’t entirely complied
with (okay, ignored might be the better word) another unrelated policy.
Early on, be sure not to place too great a weight on your policy
compliance argument until you’ve thoroughly checked to make sure that
all other policies were followed. If, as it turns out, you’re wincing because
you discover that, indeed, a management official disregarded one policy
only to strictly enforce another (to the detriment of the complainant, of
course), you’ll need to be ready to distinguish why compliance with one
was critical, and with the other was less so. This is a difficult position to
be in, of course, but foresight in this area will ensure that the government
investigator does not doubt your credibility. Remember, one inconsistent
argument by you may cast a doubt, if not a complete pall, upon every
soon-to-be-highly-scrutinized act of your institution. You can hardly
count as an ally someone who doubts your veracity.
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6.
When you have a case where your faculty member was removed from the
department and given a “project” to work on at home for the duration of
the contractual appointment
Oftentimes, removal from the campus is chosen as the best alternative
when the administration doesn’t know what to do with a problematic
employee. Rather than address the performance deficiencies or behavioral
problems and deviation from clearly defined standards, folks sometimes
decide to simply get the individual out of the workplace. Now, granted,
this may at times be the best or even the only way to proceed. More often
than not, though, it’s a situation that will prompt the individual to consider
complaining about discrimination. It’s easy to see why. From the
individual’s perspective, he has been isolated, singled out, and cast aside.
He’s been assigned a make-work project of no real institutional value,
stripped of the opportunity to be part of a team and to contribute
meaningfully.
As you address whatever complaint has arisen as a result, your challenge
will be in establishing that the action was not discriminatory. Ideally, your
institution sent the faculty member home in the first place because of a
legitimate, nondiscriminatory reason, i.e., because of allegations against
him of sexual harassment or some other policy violation. If you are able
to ascertain this to be the case, by all means you’ll want to convey this
information to the investigator so that he or she will not attribute the
change in job location to discrimination. But in other situations, it may be
more difficult to articulate why the action was taken. In your response to
the agency in those cases, you’ll want to illustrate how valuable the
employee is (if you can), how important the project is (if you can), how
flexible the university is in allowing this work-from-home arrangement,
how trusting the university is in not requiring minute-by-minute oversight
of the employee’s work, and how the university’s expectations of the work
to be accomplished during this time are very high. You’ll also want to
show the agency that the university’s policies allow the university to
establish the work location for its employees.
Once that is done, there is one strategic point that may ultimately be what
prompts the investigator to see you as eminently reasonable in this
situation: your acknowledgement that the employee may feel as if this
action has been discriminatory. It is important to express that, while the
university sympathizes with the employee for feeling singled out and
discriminated against, the university still has the responsibility to make its
employment decisions based upon what is necessary for the institution’s
best interests. Stress that those interests were served in this particular
instance. To the extent that you can convey the other options the
institution considered and had to regretfully reject, you will increase the
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likelihood that your investigator will be able to become aligned with your
view.
7.
When the timing of an adverse action closely followed a complainant’s
protected activity
We are all well trained to look for possible retaliation. We are all attuned
to the inevitable appearance of retaliation when any adverse action follows
on the heels of a discrimination complaint. But when you’re faced with a
retaliation claim that has at its crux a temporal nexus that looks, at best,
suspect (and, at worst, blatantly discriminatory), how do you proceed?
Assuming that you have determined that the complainant can make the
initial threshold showing for a retaliation case (that she did, indeed,
engage in protected activity and that your institution was aware of that
activity), ideally your thorough investigation will reveal that the adverse
action was taken for reasons other than the protected activity.
One strategy for addressing a retaliation case such as this is to determine if
you can assert that the decision-maker of the adverse action was fully
aware of the potential that the action—by its timing—could appear to be
retaliatory. If you can make this assertion, you are poised to frame the
action as being one that the decision-maker had no choice but to take. If
possible, point out that, even in the face of the appearance of retaliation,
the institution was obligated to move swiftly forward to act in full accord
with its high standards. Chances are good that the government will see
your institution’s decision with a new perspective rather than rushing to
conclude that retaliation must have occurred. Ideally, as your ally, the
agency will see your institution’s actions as evidence of an unwavering
commitment to appropriate action, even despite the false appearance that
may result.
B.
The Uncertainty Factor
There are many points in the process when it becomes helpful to ask and
determine the answers to such questions as, “What is the agency’s level of interest
here? Are we being closely scrutinized or are we just being thrown into the
routine process? Are we doing anything that would pique the government’s
interest?” Identifying these parameters may prove useful for you, not only to
determine the institution’s best direction but also to alleviate some of the
uncertainty about the process. Certain situations, more so than others, have the
potential to catch the attention of the government, to pique the government’s
interest in your institution. Can you find a way to maintain the ally relationship
you’ve worked hard to achieve in these sorts of situations?
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In the selected scenarios that follow, we examine some of those piqued-interest or
uncertain situations.
1.
When your internal EO office conducts an investigation and finds, before
your response to the agency is due, that a policy violation occurred
While this situation could also clearly fall within the previous high“wince” factor section, it is one that has the obvious potential to pique the
interest of the government. Rather than attempting to keep your internal
finding from the government, it is usually wiser to acknowledge and put
forth the finding to the agency. Whether you wish to actually provide the
agency with your EO written finding or report or instead just advise the
agency that such a finding was made will ultimately depend on the
contents of your written record and whether the detail contained within
would prove more helpful or harmful to you. Therefore, it is advisable to
write these reports as if EEOC, OCR, or your state agency will review
them to determine if you took prompt and equitable action to address the
situation. This is especially true if you share a copy of the reports with the
complainant. These reports can also demonstrate your institution’s
expertise, knowledge, and commitment to fairness and equity. The
dynamics of the relationship between you and the agency can change
markedly if the agency sees your institution as withholding information.
Contrast that with your institution maintaining an open door, with a
willingness to align itself with the agency to take a critical look inward.
The key points in this situation are to stress how limited the violation is
and to illustrate how seriously the institution views the infraction and how
tirelessly it will work to remedy it. Look closely at the violation finding.
It may be that the internal violation was based upon university policies
which are often much broader than federal law proscriptions.
An offshoot from this situation is worthy of mention. There may be an
instance, albeit rare, where your internal EO office, after finding a
violation, recommended or directed that remedial action be taken; yet the
department never complied. For whatever reason, it may simply have,
shall we say, opted out of taking that recommended remedial action. This
situation could come to the government’s attention if the complainant
alerted the agency of the institution’s internal finding and resulting failure
to act. Though it would be rare for the government to look solely at this
piece and not at the underlying basis for the violation as well, it is
possible. If at all possible, it is always a good idea for all appropriate
university officials (i.e., president, provost, department head, legal
counsel, etc.) to agree with the proposed remedial action before the EO
office commits it to writing. Depending on the issue, failure to act upon a
recommendation from your EO office will be of particular interest to
OCR. Given the nature of OCR as compared to EEOC, OCR may decide
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to expand the investigation and open up a campus-wide review of the
issue. Typically, EEOC will focus only on the charge of discrimination,
whereas OCR can use the complaint to find other areas of interest. For
example, during an on-site visit to campus to investigate a race complaint,
the OCR investigators may notice that your institution does not appear to
be the most accessible. After the race case ends, you may receive a letter
from OCR notifying you that your institution has been selected to receive
a campus-wide ADA/Section 504 accessibility review.
If possible, take whatever steps necessary to illustrate to the agency that
your institution is committed to rectifying and remedying the violation that
occurred. Of course, though, you’ll need to handle the situation internally.
Ascertain why the remedial action did not occur. Was training supposed
to have taken place? Why did it not? Was it due to a miscommunication,
a dropping of the ball, or a careless attitude? Determine if any disciplinary
action is warranted.
Stress to the agency that, unfortunately, given the constraints of academia,
the process of providing remedial action such as training is simply not an
expeditious one. Show what has been done. Has the training been
discussed at meetings? You might wish to produce the meeting minutes.
Has the need for training been used in departmental strategic planning
sessions? You might consider producing those portions of the notes.
Stress the academic year constraints. Focus on the fact that the delay in
arranging the training will ultimately result in a larger audience and, thus,
more individuals to be trained. Therefore, the delay may have the effect
of increasing the likelihood that the problem will not recur. If the agency
sees your institution as committed to doing the right thing, no matter how
long the process takes, you’ve set the stage for the investigator to once
again, even in the face of this uncertain situation, see you as an ally, not an
adversary.
Another way to address a problem or potential problem is to beat EEOC or
OCR to the punch. For example, if you are investigating a complaint and
find a problem, you can always provide the appropriate training to address
the issue. You can still be in the process of responding to the agency
while at the same time providing what the agency might ultimately offer
as a remedy. If, for instance, a complainant alleges widespread age
discrimination in a department, you may find out that there is a problem
with how persons over 40 are viewed and treated. You can immediately
institute mandatory training for all employees on age discrimination. It
can also be a good idea to use applicable agency information or brochures
during the presentation. Then, you can inform the agency in your position
statement that you have provided training on the issue and provide them
with the materials used. By taking away the possible remedy before the
case is decided, you may help influence the future determination.
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Regardless, you have provided training on the topic and now more
employees are aware of what is appropriate and what is not.
2.
When you attend an agency mediation without any money to put on the
table
While this situation will likely not directly catch the attention of the
agency investigator who may ultimately get assigned to your matter if the
mediation efforts fail, it could nonetheless pique the interest of the
agency’s mediation team. As a result, the question that surfaces is
whether this could jeopardize your institution’s chances of being offered a
mediation option on future cases. If strategically handled, one or even
repeated appearances at the mediation table with no monetary offer need
not bar future invitations.
There may certainly be times when you’ve agreed to participate in the
agency’s mediation program where you’ll want to take with you a fair bit
of authority to make a monetary offer to the complainant. That may be
highly warranted given the facts of the particular situation. But there may
also be times where your own internal investigation reveals that it would
be imprudent to offer any money to settle the matter. In those cases, you
may instead contemplate making an offer of non-monetary relief, such as a
change in the employee’s position, an updated policy, a letter of
recommendation, an expungement of a personnel record, or the like. Or
you may find it prudent to participate in the mediation even without
planning to offer any relief to the complainant.
There is, of course, an inherent risk in this latter prospect. Why? Because
if you come to the table, so to speak, without any money to put on that
table, the complainant (and her attorney, if she’s got one) will inevitably
argue that the university did not appear in good faith. The complainant
will argue at the mediation that such an act by the university only further
evidences the university’s mistreatment of her.
The mediator may, too, put the pressure on the institution. “Why, then,
would you even come here today,” the mediator may ask, “if you weren’t
prepared to offer anything?” There are a significant number of reasons
why.
First, attending a mediation gives you an opportunity to view firsthand the
complainant’s demeanor and credibility, and assess how sympathetic you
believe she may be if she takes her claims to trial. It allows you to hear
how articulately she can convey her cause, and how persuasively she can
claim she’s entitled to some relief. Regardless of whether the matter is
ultimately settled through mediation, the benefit of participating is great.
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Of course, you will need to assure your mediator that you don’t want to be
viewed as one who doesn’t take the process seriously. Indeed, you may be
well served to indicate that you were hoping to hear something that
convinced you that relief for the complainant was indeed appropriate.
Note that you came with full authority to make an offer if the facts
warranted doing so, but that, unfortunately, the facts did not. Express
regret, as well as deep appreciation to the complainant for her time, for
being upfront and honest. It is clearly worthwhile to acknowledge how
difficult the entire process is for her, and that you appreciate the
opportunity to exchange information so that both parties have the ability to
see the other side better.
You certainly don’t want to be known by the agency as the one who never
brings any money to the table. But there is no down side to be known as
the one who never brings any money to the table unless it’s warranted.
Acting in this fashion may have the added benefit of discouraging those
me-too claims. Put simply, being firm is wise. Though mediators can’t
share information about your case with investigators, your reputation
generally can make the rounds in a particular field office. As you continue
to strive to bolster your relationship with the agency, remember that your
demeanor (and that of your client), coupled with expressed genuine
appreciation as opposed to a cavalier attitude, may speak volumes.
3.
When you’re facing a complaint that fits within the agency’s expressed (or
non-expressed) focus areas
It may be that the particular complaint your institution is facing is one that
fits squarely within the agency’s focus areas. Perhaps the agency has
already articulated the complaint’s protected basis in its national
enforcement plan as a type of case it is actively interested in pursuing. Or
perhaps the local office investigating the complaint has a particular,
though unexpressed, interest in the subject matter of the complaint.
Whatever the case, be aware that you may face heightened scrutiny by the
agency as a result. It is far less likely that the case will be quickly
dismissed if the complaint fits into one of those areas. In responding to
the government, you may find it helpful to incorporate a statement that
your institution fully understands how harmful this type of discrimination
can be and explain in thorough detail how the institution has taken steps to
prevent it from occurring in the first place. If possible, it would be even
more beneficial if you could also provide information to the agency that
illustrates your institution’s public commitment to diversity and equity on
these particular bases within the educational and local communities.
Remembering that the agencies generally view that their allegiance is
owed primarily to the public at large, more so than to any one individual,
will enable you to maximize the potential that the agency will see you and
your institution as allies in its global mission efforts.
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4.
When the complainant retreats in the midst of settlement negotiations
It may be that the complainant has agreed to the terms of a settlement you
have proposed but, before signing the agreement, has decided to back out
of the entire deal. Or it may be that the complainant terminates the
services of his attorney in the middle of a settlement negotiation. In either
case, if the discussions take place at the administrative stage in the
investigation – namely, before an investigation is completed or a finding is
made – then the agency might take a renewed interest in the case. Of
course, if the complainant does not cooperate with the agency, the agency
may cease its efforts to recover individual relief for that person. This
would not, however, keep the agency from pursuing general affirmative
relief, such as training, or policy modification, if appropriate. This is
generally more applicable to EEOC than to OCR. Settlement discussions
with EEOC can take on more of a legal exchange while at OCR it can
seem more informal. OCR will probably spend more of its efforts trying
to convince the institution to agree to a lengthy agreement with several
years of monitoring. It is important to recognize that the government may
still have a vested interest in a matter that resurfaces. Understanding this
will enable you to better anticipate what the agency’s direction may be.
5.
Invitations to conciliate
This can be one of the most striking differences between EEOC and OCR.
If you are dealing with EEOC and it determines that your institution has
subjected the Charging Party to discrimination, you will be contacted and
invited to conciliate the matter. This process will probably feel more
formal and familiar to you. As you know, EEOC will attempt to make the
Charging Party whole again (from the point at which the discrimination
took place). In contrast, OCR may approach you at various times during
the investigation with offers to enter into a settlement agreement or
“commitment to resolve” to end the case. It is important to know the
differences in approach here. If, for example, you are used to dealing with
EEOC and you get an OCR complaint, you may think that OCR already
had determined that your institution discriminated against the complainant
because the agency was approaching you to resolve the matter. What
OCR is doing is trying to get you to take some action to address the
specific issue or to take some general action that, in OCR’s view, will
benefit the complainant, a department, a group of students, or the like.
Knowing this distinction about the word “conciliation” will surely help
eliminate any resulting confusion and, therefore, allow you to better work
in tandem with the agency investigator.
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6.
When OCR invites you to resolve an issue at the pre-complaint stage
This happens often, and how you respond during the pre-complaint stage,
before anyone has formally filed an agency complaint, can have a
tremendous impact on the disposition of the case. OCR may contact you
prior to assigning a case number to the complaint. During this stage, OCR
gathers some initial facts to determine if it is going to proceed with an
investigation. EEOC, for the most part, must accept all charges of
discrimination made by charging parties. Upon intake, it considers a
charge “filed” and assigns a charge number. Its investigative process may
vary depending on the seriousness of the case but, generally, it requests a
position statement for a vast majority of the charges filed. OCR, on the
other hand, can determine if it wants to investigate the allegation(s) of
discrimination. If the complaint itself is clear and raises concerns within
OCR’s jurisdiction, OCR will formally open the case and advise you that
it is open. If, however, OCR is uncertain about the case based on the
complainant’s information, OCR may call you to request information.
Again, this can happen without a case number being assigned. This can be
tricky to handle, but if you think you have a good story to share with
OCR, you may want to consider cooperating with the agency during this
phase. If you are able to provide enough information to satisfy OCR that
the complainant was not subjected to discrimination, OCR won’t even
open the case. The risk is that OCR can keep requesting information to
the point that, due to the information you informally provided, it now has
enough information to open the case whereas previously it did not. It is
often hard to tell how much information, if any, is appropriate to provide
during this pre-complaint stage. You must weigh the benefit of not having
to respond officially to OCR and having the case never really opened with
the possibility that you provide a great deal of valuable information to
OCR and it still formally opens the case.
C.
IV.
By tailoring your choices and responses to the agencies you’re dealing with so
that you directly address their potential reactions to your facts, you demonstrate
your commitment in the matter. Likewise, you have the opportunity to alleviate
the agencies’ expected concerns and, as a result, you convert the agency into your
institution’s ally.
Other Resources
A.
Online
B.
Local Offices
C.
State Offices
D.
National Offices
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