Labor & Employment Law Daily Wrap Up, EEOC NEWS—Official memoranda end monetary sanctions for federal agencies, impose presumption of innocence, (May 27, 2025)

By Patricia K. Ruiz, J.D.

The memoranda represent “the beginning of reform in the agency’s federal sector program,” according to an EEOC press release.

According to an announcement issued on behalf of the Acting Chair of the EEOC, Andrea Lucas, a memorandum issued by Lucas ends the agency’s practice of imposing monetary sanctions against federal agency employers during the federal sector equal employment opportunity (EEO) complaint process. A second memorandum clarifies that federal agencies should presume innocence, giving EEO defendants a chance to clear their names during the EEO complaint process.

According to the EEOC, the new policies support Lucas’s goal of reforming the EEOC’s federal sector program by providing accountability to complainants by promptly issuing legally sound decisions; accountability to agencies by not unduly interfering in their ability to make commonsense and merit-based decisions; and accountability to the president, Congress, and the courts by keeping EEOC actions in the federal sector within the limits of the agency’s statutory authority.

Monetary sanctions. According to the first memorandum, the EEOC has historically taken the position that it may impose monetary sanctions, including attorneys’ fees and costs, against federal agencies who fail to comply with the EEOC’s orders in administrative proceedings. The memorandum states that the EEOC, in doing so, has disregarded for two decades advice from the Department of Justice’s Office of Legal Counsel (OLC) that it may not impose such sanctions. The OLC’s opinion constitutes controlling legal advice to Executive Branch officials, and the EEOC must follow this legal advice, the memo explains, recognizing that questions of statutory construction, including questions regarding the parameters of the EEOC’s authority, are ultimately decided by the courts. The memorandum adds that the EEOC is further bound by the OLC’s opinion because it is consistent with federal courts’ firmly established jurisprudence on sovereign immunity, which holds that the U.S. government is immune from suit for money damages, unless it has consented to be sued or if waiver is expressly created by federal statute.

While the EEOC must cease imposing monetary sanctions against federal agencies, the memorandum states, it may “continue to protect the integrity of its proceedings through the other powerful tools at its disposal, such as resolving contested issues in favor of an opposing party, drawing adverse evidentiary inferences, excluding evidence, or taking other appropriately tailored action,” which will further the agency’s mission of eliminating unlawful discrimination while “responsibly stewarding the funds entrusted to the federal government by Congress.”

Presumption of innocence. The second memorandum states that neutrality is a core pillar of the federal sector EEO process. Under this pillar, an employer may not punish an employee who in good faith files a complaint or otherwise participates in the EEO process; further, the burden of proving unlawful discrimination always falls on the party making the allegation. Formally or informally punishing an employee “simply for being accused of unlawful discrimination undermines the integrity of the entire EEO process.” The memorandum further states that a presumption of innocence for the accused furthers the truth-finding goal at the heart of the EEOC process. Such protections extend to an accused employee, as an accused employee who is presumed innocent will be more likely to actively and productively participate in the truth-finding process, compared to one presumed guilty from the start.

The memorandum instructs all federal agencies to review their EEO programs to ensure true neutrality for both the accuser and the accused and it states that no federal agency should punish an employee, including by withholding or delaying promotions, for being the subject of an EEO complaint unless there is a substantive finding of misconduct based on objective and credible evidence.

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