Equal Opportunity Officers: Recognizing and Avoiding Conflicts of Interest
The regulations implementing the nondiscrimination and equal opportunity provisions of Section 188 of the Workforce Investment Act (WIA) require that Equal Opportunity (EO) Officers designated by recipients be free of "responsibilities or activities that create a conflict, or the appearance of a conflict, with the responsibilities of an EO Officer." 29 CFR § 37.24.
The effective enforcement of nondiscrimination and equal opportunity requirements in WIA programs depends in large measure on the objectivity of EO Officers.
What is a "conflict of interest?"
A conflict of interest exists when an obligation or duty to the public could be compromised by self-interest, a prior commitment, competing loyalties, or an inability to be objective.
A conflict of interest also exists when a person, such as a public official, has an interest sufficient to influence or appear to influence, the objective exercise of his or her official duties. This interest may be personal in nature or may result from divergent professional responsibilities.
What constitutes a conflict "with the responsibilities of an EO officer?"
Any responsibility, expectation, or interest that could interfere with an EO Officer's ability, motivation, or authority to perform the responsibilities listed in 29 CFR § 37.25 and ensure that recipients comply with their nondiscrimination and equal opportunity obligations under WIA Title I and 29 CFR Part 37.
Placing an EO Officer in a position where (s)he has to make a choice – conscious or unconscious – between his/her responsibility for EO compliance and his/her other interests, whether these interests are personal in nature or work-related.
A situation in which an official responsible for executing and advising on personnel actions is also responsible for managing, advising, or overseeing the EO complaint process.
- EO complaints often challenge the motivation and impact of personnel actions and decisions.
- In order to maintain the integrity of the EO investigative and decision making processes, those functions must be kept separate from the personnel function.
Situations where a conflict of interest exists or may appear to exist:
EO Officer is related to, friends with, or in a close relationship with complainant or any individual alleged to be involved in the discrimination.
An individual involved in the alleged discrimination exercises or appears to have influence over the EO Officer's compensation, performance evaluation, or job security.
It is a per se conflict of interest for an EO Officer to be responsible for processing a complaint in which (s)he has been charged with participating in discrimination against the complainant. Recipients must ensure that the individuals responsible for processing complaint allegations are not individuals charged by complainant as participating in the discrimination.
What steps can a recipient take to minimize the appearance and occurrence of conflicts of interest?
When designating its EO Officer, a recipient must evaluate whether the job duties or reporting relationships of the EO Officer may create the appearance of a conflict of interest with the responsibilities of an EO Officer.
EO Officers should not be under the supervision of the officials responsible for executing and advising on personnel actions.
The EO Officer should be placed in a direct reporting relationship to the appropriate top official. Through this arrangement, the recipient underscores the importance of equal opportunity and ensures that the EO Officer is able to act with the greatest degree of independence. Placing the EO Officer under the authority of any lower level supervisor may undermine the EO Officer's independence, especially when the person or organizational entity to which the EO Officer reports is involved in or would be affected by the EO Officer's performance of his or her responsibilities.
Is there a conflict of interest in the following scenarios?
Drafts of State Agency (recipient) decisions on discrimination complaints are sent to the State Agency's Office of the General Counsel (OGC) for review and approval. Such reviews are handled within the same functional OGC unit that would represent the State Agency in any future litigation arising from the complaint.
- Yes, there is a conflict of interest. Even if there was no evidence of improper influence by OGC on the State Agency's decisions, this structural arrangement could create the appearance that lawyers who defend the State Agency are in the position to urge a decision that is most beneficial to any future defense. This appearance alone could undermine the credibility of the complaint process with employees.
- How can recipients avoid this type of conflict?
- Recipients must not permit counsel and other representatives responsible for defending the recipient against EO complaints to intrude on the investigations and analysis of EO complaints.
- Ensure that legal sufficiency reviews of EO matters are handled by a functional unit that is separate and distinct from the unit that would defend the recipient in litigation.
- Establish and maintain distance between fact-finding and defensive functions. Impartiality is important to the credibility and integrity of recipients' EO Officers and EO complaints process.
An applicant for unemployment insurance (UI) has filed a complaint alleging sex discrimination by a UI program official. You are the EO Officer and the UI program official happens to be your supervisor's brother.
Yes, there is a conflict of interest. The familial relationship between your supervisor and the individual alleged to be responsible for discrimination will likely create, at least, the appearance of a conflict of interest for you and anyone else who works under that supervisor. However, additional or alternative complaint processing procedures can eliminate or minimize the conflict of interest.
What procedures may help eliminate or minimize the conflict of interest?
- Hiring an independent contractor to investigate the complaint;
- Enlisting the EO Officer of another recipient to investigate the complaint;
- Having an impartial attorney perform a legal review of the final decision prior to its issuance; and/or
- Consulting with the Department of Labor's Civil Rights Center.