EEO Witness Guidance

Updated April 2004

Background | Legal Rights | Process | Legal Roles

This guidance discusses the rights of employees accused of discrimination and employees contacted as witnesses in Equal Employment Opportunity (EEO) investigations. It is a companion piece to AFSA's guidance on the procedural requirements for filing an EEO complaint or grievance.

Nature of EEO Cases

From a legal standpoint, EEO complaints are filed against the agency, not the individual who is alleged to have engaged in the discriminatory conduct (although EEO complaints often name individuals who are alleged to be responsible for discrimination). Thus, the agency will be the named-defendant in the case and will be responsible for providing appropriate relief (such as monetary relief) to the complaining party. The equal Employment Opportunity Commission's current Management Directive (which provides General guidance to witnesses involved in EEO complaints) does not distinguish between the rights of individuals accused of discrimination and those persons who are merely contacted as witnesses. However, because an employee who is found to have engaged in discriminatory conduct may subsequently be subjected to disciplinary action, AFSA will continue to distinguish in this notice between employees accused of discrimination and employees contacted as witnesses.

Witnesses's Rights and Responsibilities

All employees contacted by an EEO counselor or investigator (whether they are contacted as witnesses or because they have been accused of discrimination) must cooperate in the EEO investigation. Employees so contacted have the right to know whether the counselor or investigator seeks information from them as witnesses or because they have been implicated in alleged agency discrimination. At the pre-complaint Counseling stage, the employee who is alleging discrimination has the right to elect to remain anonymous. Thus, in some instances, the counselor will not disclose the identity of this individual. However, once a formal complaint of discrimination has been filed, the complainant may not remain anonymous.

Employees have the right to be represented at all stages of the EEO complaint process by a colleague, a private attorney, or if the employee is a member, by AFSA. To eliminate the potential for a conflict of interest, witnesses should notify the EEO office in advance of the name and position title of their representative as well as the agency that employs the representative. In addition, although AFSA will make its best effort to represent members involved in EEO complaints, in some situations this may not be possible due to the conflict of interest. In such cases, AFSA will provide a lawyer referral list to employees who wish to retain private counsel.

The EEO Complaint Process

During the pre-complaint counseling stage, employees implicated in alleged agency discrimination and employees contacted as witnesses have the right to be informed of the nature of the inquiry, to the extent that such disclosure will not lead to the identification of an individual who has requested anonymity. They also have the right to respond fully to all allegations related to them. The pre-complaint process is generally informal, with the EEO counselor securing information either telephonically or through interviews.

Once a formal complaint is filed, the agency must develop a complete and impartial factual record. The investigation will include a thorough review of the circumstances under which the alleged discrimination occurred, the treatment of members of the complaint's group (e.g., race, sex, etc.) compared with others not in this group, and any employment policies and practices which may constitute discrimination. The investigation may be accomplished through the use of such methods as interrogatories (written questions), affidavits (sworn statements), and fact finding conferences, as appropriate. EEO investigators are authorized to administer oaths, and statements of witnesses shall be made under oath or affirmation, or alternatively, by written statement under penalty of perjury.

After a formal complaint of discrimination has been filed, employees whose alleged actions are the basis of a discrimination claim against the agency should have access to case materials to the extent needed to fully respond to the allegation against them. This written information may include excerpts from: a) the EEO complaint; b) the EEO counselor's report; c) affidavits submitted by the complaining party; d) affidavits from other individuals; e) any other documents (such as personnel files) that the EEO investigator deems necessary and appropriate to enable the person accused of discrimination to answer the allegations.

All employees contacted by an EEO counselor or investigator should answer all questions (written or verbal) truthfully and to the best of their ability. If a particular question is unclear, the employee should ask for clarification. In conducting an EEO investigation, it is often necessary for the investigator to ask for information regarding the composition of the work force. Thus, the investigator may legitimately ask a supervisor to identify the race, sex, or national origin, etc. depending upon the type of discrimination that is being alleged of the employees he or she supervises. Witnesses may also be asked to voluntarily identify their own and others race, sex, national origin, etc.

Employees who participate in good faith in EEO investigations are protected under the EEO laws from retaliation by the agency. For example, if an employee has provided evidence regarding his or her supervisor's conduct, the agency or supervisor may not retaliate against the employee. Note, however, that an employee may be disciplined or subject to other legal action (such as perjury or a defamation lawsuit) for knowingly and maliciously providing false information to the EEO investigator.

Role of EEO Counselors and Investigators

EEO counselors and investigators have a responsibility to be objective and impartial. They should not become an advocate for either side or take a position on the merits of the allegations of discrimination. Employees should be aware, however, that investigators are charged with pursuing the EEO laws vigorously. This vigor should not be confused with partiality. If an employee believe a particular EEO counselor or investigator has crossed the line of acceptable tactics and is acting with a prejudice or bias for or against one of the parties, the employee is encouraged to contact the agency EEO Office in Washington for assistance. The counselor or investigator will be removed from the case, when appropriate. If you do not believe the EEO office is taking corrective action, please contact AFSA.

Subject to limitations imposed by the Privacy Act, information provided to the EEO counselor and investigator is personal, sensitive information and will be treated as such. However, if the complaining party files a formal EEO complaint, the complainant and his or her representative does have aright to the investigative file. As discussed above, the person implicated in a complaint of discrimination against the agency may also be given access to excerpts of affidavits and other documents.

While the EEO office does not have the authority to discipline an employee who has been found to have engaged in discriminatory conduct, the agency's personnel or human relations office possess this authority. If the agency does not take corrective action, it may be viewed as condoning the discrimination. Corrective action can include diversity training or discipline ranging from a verbal admonishment or written reprimand to suspension or separation from the Service, depending upon the severity of the conduct. The discipline must be appropriate to the infraction. As with all other types of disciplinary actions, an employee is entitled to file a response to the proposed disciplinary action, file a grievance with the agency, and appeal the denial of the grievance to the Foreign Service Grievance Board. Absent a conflict or interest, AFSA is available to assist members throughout the disciplinary and grievance processes.

If you have questions regarding a specific case, please call your agency's EEO Office: State (202) 647-9258; USAID (202) 712-1110; FCS (202) 482-3940; FAS (202) 720-7233.