B. An Introduction to the Conflict of Interest Issue in EEO Complaint Processing
The Army is a federal agency and is prohibited from discriminating against its civilian employees on the bases of race, color, religion, sex, national origin, age, disability, genetic information, or via retaliation. The EEOC enforces these rules. Federal agencies, such as the Army, play two different roles in the EEO process.
The first role is to “eradicate unlawful employment discrimination that may occur within the agency.” The Army accomplishes this requirement through setting up EEO offices to process discrimination claims and through implementing Army-specific EEO regulations. The second role is to defend itself against discrimination allegations brought against it. This is accomplished by agency attorneys defending their agency against discrimination complaints brought by its civilian employees. Thus, the Army is required to impartially investigate discrimination claims brought against it by its own employees, while simultaneously defending itself from those very claims. Army regulation does not require a firewall between these two functions.
Army labor counselors play dual roles within this system. One role is to provide legal advice to the EEO office. This often involves the labor counselor providing legal sufficiency reviews for accepting or dismissing formal discrimination claims. The other role Army labor counselors play is as the agency representative. Agency representatives are responsible for the Army’s legal defense in discrimination claims brought against it.
Conversely, EEOC directives do require “a firewall between the EEO function and the Agency’s defensive function.” Given conflicts between Army regulation and the EEOC’s directives, Army labor counselors struggle with satisfying their ethical obligations while serving as Agency representatives throughout the EEO process. There are risks for labor counselors practicing under the Army’s current EEO process. These risks include ethical complaints alleging conflicts of interest, removal from litigation, and sanction.
This article will advocate for implementation of regional legal counsel for EEO offices in order to solve this problem. The proposed regional legal counsel would not be involved in the Army’s defense and would provide legal sufficiency reviews for formal EEO complaints that fall within a specified region of responsibility. This article will argue that implementing such counsel aligns with current Army diversity, equity, and inclusion initiatives by reducing actual or perceived bias in the formal complaint acceptance process.
I. The Legal Framework for EEO Discrimination Complaints
Title VII of the Civil Rights Act of 1964, as amended, prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. When enacted, Title VII did not extend to the federal sector. However, in 1972 Congress extended Title VII discrimination prohibitions to the executive agencies of the federal government. Federal civilian employees, to include Army civilian employees, may bring employment discrimination claims under Title VII; however, this same protection has not been extended to uniformed servicemembers. Courts have barred uniformed servicemembers from bringing Title VII claims, reasoning that Title VII only applies to civilian employees.
The EEOC enforces federal laws that prohibit discrimination against federal employees on the basis of race, color, religion, sex, national origin, pay, age, disability, genetic information, and via retaliation. The Army has a significant number of EEO complaints filed by its employees each year. In fiscal year 2021, Army civilian employees filed 956 EEO complaints. The most common basis for these complaints was discrimination based on race, sex, or reprisal. The Army dismissed 117 of the 956 complaints.
The EEOC provides oversight of federal agencies, ensuring compliance with its rules and regulations. The Army is required to abide by the EEOC’s rules and procedures as proscribed in the Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110). The Army has also promulgated its own EEO procedures in Army Regulation 690-600, Equal Employment Opportunity Discrimination Complaints. Army Regulation 690-600 was published in 2004, but has not been updated since, even to account for changes in the 2015 EEO-MD-110. Thus, counsel using the Army’s policies and procedures are not always in compliance with the most recent guidance from the EEOC. The remaining parts of this section will examine the Army’s EEO complaint processing procedures and the labor counselor’s role in the EEO complaint process.
A. Army EEO Complaint Processing and Procedures
The Army’s EEO complaint process is broken into two phases—1) the informal (pre-complaint) phase; and 2) the formal complaint phase. This section will first address those phases and then will look at the Army’s procedures for accepting and dismissing complaints.
1. Informal Complaint Phase
An Army employee who believes she has been discriminated against must initiate the EEO complaint process within forty-five days of the “discriminatory act.” The informal (pre-complaint) phase begins when an employee contacts an EEO official and demonstrates an “intent to proceed with the EEO complaint process.” An employee alleging discrimination in the pre-complaint phase is known as an aggrieved. The EEO official has ten days to conduct an inquiry into the aggrieved’s claim. This inquiry involves interviewing witnesses, reviewing documentation, and conducting a final interview with the aggrieved. After this inquiry, the EEO official “advise[s] the aggrieved of the results of the inquiry and discuss[es] proposed solutions” to address the allegations. The EEO counselor provides the aggrieved with a written “Notice of Right to File a Formal Complaint of Discrimination.” The aggrieved has fifteen days to file a formal complaint after receiving this notice.
2. Formal Complaint Phase
The formal complaint phase begins when the complaint is filed with an EEO official. The aggrieved is referred to as the complainant after the formal complaint is filed. Once filed, the formal complaint is reviewed by the EEO official, who determines whether it should be dismissed or accepted. The EEO official is required by regulation to consult and coordinate with the agency representative prior to making this determination.
3. Dismissed Formal Complaints
A complaint will be dismissed (subject to final agency decision) for criteria listed in Army Regulation (AR) 690-600, section 4-4. These criteria include the following: failure to state a claim, stating the same claim, untimely EEO counselor contact, untimely filing of formal complaint, unrelated information, and abuse of the EEO process. A complainant may appeal a dismissal decision. Appeal rights may include appealing a decision to the EEOC, Office of Federal Operations, the right to file a civil action in federal district court, or the right to appeal to the Merit Systems Protection Board.
4. Accepted Formal Complaints
Conversely, if the complaint is accepted, a request for assignment of an independent investigator is forwarded to the Investigations and Resolutions Directorate, Department of Defense Civilian Personnel Management Service, who will investigate the complaint and issue a report of investigation. The final report of investigation is then forwarded to the complainant who may elect the following options: 1) a hearing before an EEOC administrative judge; 2) a final agency decision based on the record; or 3) no action, in which case the Army will issue a final decision.
B. The Army Labor Counselor’s Role in the EEO Complaint Process
AR 690-600, the EEO-MD-110, and case law govern the practice of Agency representatives and the processing of EEO complaints. These authorities do not always seamlessly synchronize; therefore, agency representatives must be aware of where the authorities diverge to avoid potential ethical issues.
1. AR 690-600
AR 690-600, published in 2004, outlines the agency representative’s responsibilities throughout the EEO process. Agency representatives must provide legal advice to the Army’s representatives on EEO matters, coordinate with the EEO official on the acceptance or dismissal of complaints, and “act as the Army’s representative in investigations and EEOC hearings on individual complaints.” The agency representative represents the best interests of the Army and his or her role is “to ensure that the Army’s position is based on a sound legal theory and supported by competent evidence at the investigative, hearing, and appellate stages.”
Thus, AR 690-600 requires agency representatives to perform two roles in the EEO process: 1) to coordinate with the EEO office on the acceptance or dismissal of complaints; and 2) to defend the agency against individual complaints. The regulation is notably silent on any requirement to establish a firewall between these two functions. It is also silent on whether an agency attorney performing both of these functions may give rise to conflicts of interest concerns. The next section will examine why this silence is problematic.
2. Equal Employment Opportunity Management Directive 110
In contrast to AR 690-600, the EEO complaint processing procedures in the EEO-MD-110, published in 2015, are more restrictive. Army labor counselors must be aware of the EEOC’s requirements and abide by the more restrictive rules.
As a federal agency, the Army is bound to comply with the EEO-MD-110. The EEO-MD-110 mandates “a firewall between the EEO function and the agency’s defensive function. The firewall will ensure that actions taken by the agency to protect itself from legal liability will not negatively influence or affect the agency’s process for determining whether discrimination has occurred.” The second important mandate addressed in the EEO-MD-110 is that “the agency representative in EEO complaints may not conduct legal sufficiency reviews of EEO matters . . . . [L]egal sufficiency reviews conducted outside the EEO office must be handled by individuals that are separate and apart from the agency’s defensive function.”
3. Annalee D. v. General Services Administration
The EEOC has addressed the issue of the limits of an agency representative’s role during the investigative stage of an EEO complaint. In Annalee D. v. General Services Administration, the Commission addressed whether the agency had committed misconduct by “undermin[ing] the integrity of the EEO process by allowing attorneys from the Office of General Counsel to assist management officials during the pre-hearing stages of the EEO process.” In its analysis, the Commission referred to the “interference” principle derived from EEO-MD-110. This principle provides that agency representatives must not “interfere with the investigation and deliberations of the EEO Office . . . [and] that there should be separation or distance between an agency’s EEO function and its defensive function.”
The Commission explained that “the agency representative . . . may not conduct legal sufficiency review of EEO matters . . . such as acceptance/dismissal of complaints.” It also reasoned that “while the Commission has long emphasized the importance of a firewall between the investigative functions of the Agency’s EEO program and the defensive functions of agency defense counsel, the actions taken by the agency defense counsel in this case did not violate the firewall between the two functions.” The Commission’s holding provides that the “EEO-MD-110 permits agency defense counsel to participate in the pre-complaint and investigative stages under clearly defined and controlled conditions that will carry out the Agency Head’s obligation to defend the Agency against legal challenges while avoiding inappropriate interference with the activities of the EEO Office.”
The Commission’s analysis in the Annalee case highlights the requirement of maintaining a firewall between the investigative functions of the EEO program and the agency’s defensive function. The Commission found that the firewall was not breached because the agency representative was acting in his appropriate defensive role during the investigative phase and was not inappropriately assisting the EEO program with its investigative function. The Commission has not considered a conflict of interest “interference” case in which an agency representative who is performing a defensive role has also provided a legal sufficiency review to the EEO office.
C. The AJ’s Power to Suspend, Disqualify, and Sanction Agency Representatives
Army agency representatives practicing before the EEOC are subject to the AJ’s “power to regulate” administrative hearings. This power allows AJs to “suspend or disqualify . . . any representative who refuses to follow the orders of an administrative judge, or who otherwise engages in improper conduct.” An AJ who suspends or disqualifies an attorney representative under this rule may also refer the action to the attorney’s bar association for disciplinary action.
The AJ may disqualify an agency representative from a particular case due to a conflict of interest when representation would “conflict with his official or collateral duties.” Parties are required to disclose and reasonably attempt to avoid all conflicts of interest.
An AJ may also impose sanctions in appropriate circumstances. Sanctions may be imposed as monetary or evidentiary and can even result in an AJ making a decision on the merits in favor of an opposing party. It is important for agency representatives to understand all the extent of the authorities applicable to their practice so as not to risk being subject to ethical complaints, removal from litigation, and sanction.
II. The Conflict Between Army Regulation and the EEO-MD-110
As an examination of authorities demonstrates, conflicts exist between AR 690-600 and EEO-MD-110. Army labor counselors following only Army guidance may, thus, not be complying with EEOC guidance. Additionally, labor counselors struggle with satisfying their ethical obligations while serving as agency representatives throughout the EEO process. This section will examine these potential pitfalls.
A. Agency Representatives Following Army Regulation May Violate EEO Standards
The EEOC mandates the “vigilant separation” of the agency’s “dual obligations of carrying out fair and impartial investigations of complaints . . . and defending the agency against claims of employment discrimination.” The EEOC recognizes that a clear separation between these two competing functions is “the essential underpinning of a fair and impartial investigation, enhancing the credibility of the EEO office and the integrity of the EEO complaints process.” As such, the EEO-MD-110 mandates “a firewall between the EEO function and the agency’s defensive function.” Further, “[a]t a minimum, . . . the agency representative in EEO complaints may not conduct legal sufficiency reviews of EEO matters . . . . [I]mpartiality or the appearance of impartiality is not ensured by simply rotating agency representatives within the same office . . . .”
The EEOC’s mandate for clear separation between the Army’s dual obligations in EEO cases is not represented in AR 690-600. In fact, AR 690-600 allows for the agency representatives to perform two competing roles in the EEO process: 1) to coordinate with the EEO office on the acceptance or dismissal of complaints, and 2) to defend the agency against individual complaints. The regulation is notably silent on a requirement to establish a firewall between these two functions, or whether a conflict of interest exists for an agency representative to perform both of these functions on the same case.
This silence presents potential pitfalls for the inexperienced agency representative. The inexperienced agency representative may look no further than AR 690-600 for his or her responsibilities and, upon reading the regulation, conclude there is no firewall required between the dual roles in the EEO process. If the inexperienced agency representative did act within these dual roles on the same case, he or she would not have violated AR 690-600; however, he or she would have violated the EEOC’s directives in the EEO-MD-110. This attorney may face sanctions and could be removed from the case by the AJ. The matter could also be referred to the agency representative’s state bar as an ethical violation.
B. Army EEO Processing and Potential Conflicts of Interest
Potential ethical pitfalls exist for Army labor attorneys who are aware of and practice within the strictures of AR 690-600 and the EEO-MD-110. Consider the CPT Russell scenario. CPT Russell is a labor counselor who is currently defending the Army against twelve EEO complaints. While actively serving as an agency representative in these cases, CPT Russell also completed a legal sufficiency review of a separate EEO complaint and provided legal advice to the local EEO office on whether to accept or dismiss discrimination claims.
At issue here is whether simultaneously defending the Army in EEO complaint litigation and also providing legal advice to the EEO office on the acceptance or dismissal of unrelated claims amounts to a conflict of interest as contemplated in the EEO-MD-110 or a conflict of interest in accordance with professional responsibility rules. The following sections will analyze these issues.
1. Whether Army Processing Standards Allow for Violation of the EEO-MD-110
The EEO-MD-110 makes it clear that the separation between the EEO complaint process and the Agency’s defensive function is the “essential underpinning of a fair and impartial investigation, enhancing the credibility of the EEO office and the integrity of the EEO complaints process.” The directive further establishes that “there must be a firewall between the EEO function and the agency’s defensive function.” When necessary, the EEO office may seek legal reviews from outside their office provided that they are “handled by individuals that are separate and apart from the agency’s defensive function.”
An agency representative who simultaneously defends the Army against EEO claims and conducts legal sufficiency reviews for the EEO office on different EEO claims is arguably in compliance with the EEOC’s firewall standard. The attorney may argue that he or she is not performing the defensive function on these particular cases and is, therefore, sufficiently “separate and apart from the agency’s defensive function.”
However, a persuasive argument could be made that an agency representative who performs both of these functions is breaching the firewall standard. The EEO-MD-110 explicitly provides that “legal sufficiency reviews conducted outside the EEO office must be handled by individuals that are separate and apart from the agency’s defensive function.”
Recall the CPT Russell hypothetical. CPT Russell is involved in the agency’s defensive function because he is currently defending the Army in twelve EEO claims. Under a plain reading of the firewall standard, CPT Russell is not “separate and apart” from the agency’s defensive function. Under this interpretation, CPT Russell would be prohibited from conducting legal sufficiency reviews for the EEO office for any EEO complaint because he is involved in the agency’s defensive function. This issue has not been litigated or addressed by the EEOC. However, agency representatives who perform legal sufficiency reviews should be aware that this issue exists.
2. Whether Performing Dual Roles Violates the Rules of Professional Responsibility
An agency representative who performs legal sufficiency reviews for the EEO office while simultaneously defending the Army on separate EEO claims is at risk of violating professional responsibility rules. The “ethical conduct” of Army lawyers is governed by Army Regulation 27-26, Rules of Professional Conduct for Lawyers. A violation of these rules constitutes “professional misconduct” and must be reported. Reports of professional misconduct for judge advocates and Army civilian attorneys are reported to the Chief, Professional Responsibility, Office of the Judge Advocate General.
Rule 1.7 of the Rules for Professional Conduct for Lawyers addresses conflicts of interest. The rule states that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” Comment 7 to Rule 1.7 explains the concept of “material limitation” as it relates to conflicts of interest. Comment 7 states the following:
Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.
Recall the CPT Russell scenario. CPT Russell represents the Army as the agency representative in twelve EEO cases. In this role, CPT Russell’s responsibilities and interests are to defend the Army against claims of unlawful discrimination. CPT Russell’s role in these cases is to “ensure that the Army position is based on a sound legal theory and supported by competent evidence at the investigative, hearing, and appellate stages.”
CPT Russell performs a separate role from agency representative when he provides legal advice to the EEO office. In these cases, CPT Russell is “coordinat[ing] with the activity EEO officer on the acceptance or dismissal, in whole or part, of individual complaints at the activity, subject to the final decision of the Army director of EEO, or designee.” In this role, CPT Russell’s legal analysis and advice is being used by the EEO office in its determination to accept or dismiss discrimination claims.
It is possible that a fact finder could determine that CPT Russell’s actions violate Rule 1.7 because he is “materially limited” from acting as an agency representative and a legal advisor to the EEO office even in unrelated cases. A fact finder could conceivably find a “significant risk” that CPT Russell’s “ability to consider, recommend, or carry out an appropriate course of action” for the EEO legal sufficiency review is “materially limited by his responsibilities and interests” in defending the Army as an agency representative.
In this case, CPT Russell’s suspected violation of Rule 1.7 could be reported to the Chief, Professional Responsibility, Office of the Judge Advocate General. CPT Russell would also need to consult his state bar’s professional responsibility rules to determine whether he has a reporting requirement. The next section will propose a solution to this issue.
III. The Army Should Implement the EEO-MD-110 “Optimal” Standard
The Army should update its EEO procedures to the EEO-MD-110 “optimal” standard. Doing so will prevent agency representatives from performing the dual roles of conducting legal sufficiency reviews for EEO complaints and defending the agency against discrimination complaints. The benefits of adopting this standard include protecting agency representatives from potential conflicts of interest violations, preventing unnecessary and costly litigation surrounding conflicts of interest violations, and bolstering the credibility of the Army’s EEO program.
The EEO-MD-110 addresses the importance of separating the EEO complaint program from the agency’s defensive function in order to “enhanc[e] the credibility of the EEO office and the integrity of the EEO complaints process.” The directive mandates a firewall between the EEO function and the agency’s defensive function. Importantly, the directive requires that the EEO director be provided “with sufficient legal resources (either directly or through contracts) so that the legal analyses necessary for reaching final agency decisions can be made within the autonomous EEO office.” The EEO-MD-110 goes on to say that “[t]he optimal situation is for the EEO office to have sufficient internal legal resources.”
Army EEO offices do not have sufficient internal legal resources to act in accordance with the “optimal” standard. Instead, Army EEO offices seek legal sufficiency reviews from outside the EEO office from agency representatives not involved in defending the Army on that particular case. However, as in the CPT Russell scenario, the agency representatives performing these legal reviews do act in defensive functions in other discrimination complaints brought against the Army.
The Army should implement the “optimal” standard by providing EEO offices with an internal legal resource. There are likely a number of ways the Army could solve this problem. One option could be to break up the Army’s EEO offices into five different regions, much like the Army’s Special Victims’ Counsel Program. Each region would be staffed with one internal attorney whose primary responsibility would be to provide legal sufficiency reviews for EEO complaints arising within their assigned region. The attorney would be co-located with a local EEO office within their assigned region and would fall under the EEO office organizational structure. The attorney would not be organized under a local OSJA and would not be evaluated or rated by anyone in an Army legal office responsible for defending the Army against discrimination complaints. This attorney could provide additional value to the organization by providing legal advice to the EEO directors in his or her region and by providing training to the EEO officers. Although a model similar to this would be optimal, it would require the request and authorization of new attorney positions. This would likely take considerable time and resources to implement.
A second option would be for EEO offices to route legal sufficiency reviews to a local OSJA’s administrative law department instead of to an Army labor counselor. This would allow an administrative law attorney to provide the legal sufficiency review instead of an agency representative. This option is less desirable because it would not provide the EEO office with its own internal legal resource as described in the optimal standard; however, it would be easier to implement because it would only require coordination and agreement between the EEO office and its local OSJA to process these legal sufficiency reviews.
The result of adopting the “optimal” standard, or at least improving the current model, would include protecting agency representatives from potential conflicts of interest allegations, preventing litigation surrounding conflicts of interest violations, and bolstering the credibility of the Army’s EEO program.
IV. The Army’s People First Environment Is Ripe for the Proposed “Optimal” Standard
The Army should adopt the “optimal” standard in order to reduce actual or perceived bias in formal complaint processing. This improvement is in-line with the policy objectives described in the Army Vision and its progeny.
The Army Vision, published in 2018, establishes the Army’s objectives for the following ten years. In support of the Army Vision, the Army published the Army Strategy, the Army People Strategy, and the Diversity, Equity, and Inclusion Annex to the Army People Strategy. A focus of these documents is to “overhaul [the Army’s] personnel management system to attract, develop, and retain exceptional Leaders and Soldiers.”
The Army People Strategy recognizes the Army’s people as its “greatest strength and most important weapon system.” The Army People Strategy calls for improvements in support services that will “deliver an effective and carefully targeted mix of programs, services, and policies that increase diversity, equality of opportunity, and inclusion.” The Army People Strategy even “seek[s] the rewrite of any laws and regulations as needed to support the objectives of this strategy.”
The Diversity, Equity, and Inclusion Annex (DEI Annex) to the Army People Strategy provides procedural direction to enable the Army to become a model example of diversity, equity, and inclusion in order to acquire and retain talent. The DEI Annex requires a review of the Army’s EEO program to “[s]tudy transforming Equal Employment Opportunity [EEO] requirements and imperatives to advance diversity and inclusion.”
Implementing an internal legal resource for EEO offices will improve the Army’s EEO program. Removing the agency representative from the Army’s EEO complaint processing will reduce actual or perceived bias in the formal complaint process and will “enhance the credibility of the EEO office and the integrity of the EEO complaints process.” This outcome aligns with the Army People Strategy’s call for improvements to Army programs that “increase diversity, equality of opportunity, and inclusion.”
Conclusion
Army labor counselors struggle with satisfying their ethical obligations throughout the EEO process due to conflicts between Army regulations and EEOC directives. Army regulations do not prohibit labor counselors from conducting legal sufficiency reviews of formal EEO complaints while simultaneously engaged in defending the Army against EEO complaints as Agency representatives. Conversely, EEOC directives require “a firewall between the EEO function and the agency’s defensive function.” Thus, Army labor counselors who perform both the EEO function and the defensive function, even in unrelated cases, risk running afoul of the EEOC’s firewall mandate and could be subject to ethical complaints alleging conflicts of interest, removal from litigation, and sanction.
The Army should implement regional legal counsel for EEO offices in order to solve this problem. The proposed regional legal counsel would not be involved in the Army’s defensive function and would be responsible for providing legal sufficiency reviews for formal EEO complaints that fall within their specified region of responsibility. The positive outcomes for implementing this change include shielding Army labor counselors from potential ethical complaints, removal from litigation, or sanction, and bolstering the credibility of the Army’s EEO program by reducing actual or perceived bias in the formal complaint review process.
