Three's a crowd: why mandating union representation at mediation of federal employees' discrimination complaints is illegal and contrary to legislative intent

The article focuses on the most recent, and most relevant, of the cases, the U.S. Court of Appeals for the District of Columbia's decision in Department of the Air Force, Dover Air Force Base v. Federal Labor Relations Authority.3 The courts, particularly the Dover AFB court, have made several errors which have forced government agencies to invite unions to participate in mediation of discrimination complaints brought by its bargaining unit members. The courts' errors include: deferring to the Federal Labor Relations Authority (FLRA)4 in its interpretation of a statutory process governed by the EEOC, failing to consider the text of the Civil Rights Act (Title VII)5 in its analysis of a process mandated by that Act, using a Labor statute to determine if a process created by Title VII is a "formal" process, failing to look to either Title VII or the Federal Service Labor Management Relations Statute (FSLMRS)6 to determine if a complaint made pursuant to Title VII is a "grievance" for the purpose of the FSLMRS, summarily dismissing the requirements of the Administrative Dispute Resolution Act (ADRA), and ignoring or mischaracterizing the mandates of the Privacy Act.7 The result of the courts' misinterpretation of the law is a disincentive to enter into mediation by both the complainant and management.