In the pursuit of equality and fairness in the workplace, the Equal Employment Opportunity Commission (EEOC) is a beacon of hope for employees facing discrimination and retaliation. However, this beacon dims when federal agencies fail to conduct timely investigations of EEO complaints, leaving employees in limbo and delaying, and often denying, justice as a result. The EEOC needs to step up its enforcement efforts and impose more aggressive sanctions on agencies that neglect their duty to investigate complaints in a timely manner.

The regulatory deadlines set by the EEOC are not merely suggestions. In fact, the EEOC has stated that its regulations are necessary to eliminate unlawful employment discrimination. Despite this, for far too long, many agencies have treated the EEOC's regulations regarding case processing deadlines as merely optional.

HOW BIG OF A PROBLEM IS THIS?

While not all agencies regularly disregard regulatory deadlines, many do, and there are several agencies that are the worst offenders. For example, Customs and Border Protection (CBP) within the U.S. Department of Homeland Security (DHS) is arguably the biggest offender in recent years. According to CBP's own data, the agency exceeded investigative deadlines in 188 cases in FY21, 321 cases in FY22 and 354 cases in FY23. In FY22, the last year for which DHS wide data is available, DHS only completed timely investigations in 70% of EEO complaints, up from 68% the prior year. Another example is the Department of the Air Force, which exceeded deadlines in 424 cases in FY20, 308 cases in FY21 and 197 cases in FY22. 

For many agencies, it is impossible to discern how frequently they fail to investigate cases in a timely manner because they do not publish case processing data despite it being required by law. A review of the EEOC's annual report data for all federal agencies from 2019, the last year it is published, reveals that more than 35 federal agencies (or their subcomponents) failed to surpass the 60% mark for timely completed investigations. In FY20, 1,760 investigations were untimely across the federal government, representing nearly 15% of all complaints. Based upon my experience representing federal employees in EEO complaints since FY20, this number has almost certainly risen.

This data reflects that hundreds, and likely thousands, of federal employees are being denied timely processing of their complaints each year.

WHY ARE MORE AGGRESSIVE SANCTIONS NECESSARY?

The failure to timely investigate EEO complaints not only undermines the integrity of the EEO process but perpetuates a culture where discrimination goes unchecked.

Timely investigations are essential for ensuring prompt justice and maintaining employee confidence in the EEO system. Untimely investigations lead to the loss of critical evidence and witness testimony, further hindering the pursuit of justice. As time passes, witnesses retire and can no longer be compelled to participate in the EEO process. Additionally, witnesses' memories fade over time – losing the ability to recall key facts and information that may be critical to the case.

Beyond the damage to an employee's ability to prove their claim of discrimination, long delays often force an employee to endure additional harassment, discrimination and/or retaliation while the agency twiddles its thumbs. Other employees, who may be considering filing a claim of discrimination of their own, are dissuaded from doing so by a broken system that favors the agencies.

Regulatory deadlines are strictly enforced when it comes to employees and it should be the same for agencies. For example, a federal employee is required to contact an EEO office within 45 days of the discriminatory action. If they fail to comply with this deadline, absent limited and compelling circumstances, they forfeit the right to pursue their claim forever. If an employee does timely contact an EEO office, they will later be given 15 calendar days to file a Formal EEO complaint. If they fail to meet this deadline, again absent limited circumstances, they forfeit the ability to pursue the claim forever. However, when it comes to the federal agencies' deadlines, they are regularly violated without any consequence whatsoever.

Delayed investigations also put a strain on the federal workplace. Timely investigations contribute to organizational efficiency and productivity. Lingering unresolved complaints can create tensions within teams, disrupt workflow, and damage morale. By promptly addressing issues of discrimination and harassment, federal agencies can maintain a healthy and harmonious work environment conducive to productivity.

By holding federal agencies accountable for their failure to comply with regulatory deadlines, the EEOC can demonstrate its commitment to upholding the principles of equality and fairness in the workplace. Aggressive sanctions will not only serve to deter future violations but also will restore employee faith in the integrity of the EEO process.

WHAT SHOULD THE EEOC DO?

The EEOC has the power to sanction agencies for failing to complete a timely investigation. Sanctions can be as minor requiring the Agency post a notice that it is in violation of the EEO regulations or training for those involved in causing the delay, or as severe as default judgment, in which the complainant is found to have prevailed as punishment for the agency's violation and to remedy the harm to the complainant and the EEO system. More severe sanctions are necessary to ensure federal agencies regularly comply with investigative deadlines because until the repeat offenders view the cost of non-compliance as greater than the cost of timely investigating EEO complaints, the agencies will continue to underfund their EEO operations and neglect their obligations under the law.

If the EEOC takes its mandate seriously, then it must begin to more aggressively sanction agencies who treat the EEOC's regulations as optional. This will cause some short-term pain for federal agencies who have failed to staff and fund their EEO operations, but in the long term it will improve the efficiency of the government, improve employee relations, and further the EEOC's goal of stamping out discrimination and promoting equal opportunity in the federal workforce.