A Detailed Look at the Federal EEO Complaint Process
Posted By fedpractice || 20-Sep-2017
Under the law, federal employees are protected from discrimination by the several federal laws, including Title VII, the Rehabilitation Act, and the Age Discrimination in Employment Act. The basic premise of these equal employment opportunity laws is that there should be a level playing field for all employees when it comes to hiring, promotion, firing, wages, training and benefits – especially in the federal government.
When a federal employee makes an Equal Employment Opportunity (EEO) complaint, the process starts with the employee’s agency, and if the complaint cannot be resolved, it can then go to the Equal Employment Opportunity Commission (EEOC), where the EEOC’s Administrative Judges hold hearings to make determinations based on evidence provided, and can award damages and other types of remedies.
How to File an EEO Complaint Against the Federal Government
Federal agencies are prohibited from discriminating against federal employees and job applicants on the basis of race, color, religion, gender, age, nationality, disability or genetic information. You are also protected from retaliation if you report discrimination, file an EEO complaint, or otherwise engage in the EEO process.
If you think you were discriminated against, you need to file an EEO complaint right away. Federal employees only have 45 days to initiate an informal complaint of discrimination. To meet this deadline, you need only contact an EEO Counselor and state that you want to file an informal complaint. The EEO Counselor will then provide forms for you to fill out and generally request:
- A brief description of the discriminatory incident or incidents creating a hostile work environment: this is where you tell your story, by explaining what happened and why you believe what happened was discriminatory. For example, you were passed over for a promotion or excluded from a series of important meetings. You do not need to provide every detail, nor are you required to provide any evidence at this stage.
- Your belief about the basis of the discrimination: What about you do you believe was the basis for the discrimination? Is it your race, gender, age or something else?
- A description of how you were injured by this incident and what type of relief you are seeking: In some cases, the situation can be resolved readily through an action like a reassignment, where in other cases, you may seek compensatory damages for pain and suffering, or back pay in non-selection or non-promotion cases.
You will also be given the option to proceed with EEO Counseling or with Alternative Dispute Resolution(ADR) – otherwise referred to as mediation. There are many benefits to the mediation process, however, what option makes sense in your particular circumstance is something you should discuss with an attorney.
If you are unable to resolve your complaint during the informal complaint stage, you will then be issued a Notice of Right to File, which will allow you 15 days to file a formal complaint of discrimination against the agency. You will also typically be given a complaint form to use, which will identify what information you need to provide with your complaint. If you do not file your formal complaint within 15 days, it will be dismissed as untimely.
EEO Investigation Timeline
After you file a formal complaint, your agency’s EEO Office will decide whether to accept your complaint for investigation. There are very few reasons allowing an agency to dismiss a formal complaint, so if your complaint is not accepted for investigation or is partially dismissed, an attorney can discuss appeal options with you.
If your complaint is accepted, your agency will have 180 days from the day you filed your formal complaint to complete the investigation. If you amend your complaint, the agency gets another 180 days to investigate. The investigation period can also be extended for 90 days with your consent, although it is rarely in a complainant’s interest to allow the agency additional time to investigate.
The investigator gathers evidence about your complaint, including witness statements, to put together a Report of Investigation. The investigator has no role in deciding the merits of your complaint. They may contact the agency or other employees to get information about the incident. The purpose is to create a record so that the EEOC can determine whether discrimination occurred.
Possible Remedies for EEO Complaints
The goal of EEO complaint process is to get you to where you would have been if you had not been discriminated against – in other words, to make you whole. This means that if you win your discrimination case, there will be an attempt to create the status you would have had if the discrimination had not taken place. There are several outcomes that are possible:
- Compensatory Damages — If you suffered pain and emotional distress, harm to your reputation, harm to your career, you may be entitled to compensatory damages in an amount of up to $300,000, which is the maximum in non-pecuniary compensatory damages allowed in discrimination cases against the federal government. To obtain compensatory damages, you may need to present evidence, such as your medical records, to establish the harm that the discrimination has caused you.
- Back pay — If you were denied a promotion due to discrimination or were paid less than someone not in your protected class (e.g., if you are a woman who was paid less than a man for the same work), your agency may have to pay you the money you would have received if you got the promotion to make up for paying you less for equal work. In the case of a non-promotion, that payment would be calculated from the date you were passed over for the promotion or until the present.
- Corrective Actions — If you file an EEO complaint because you were not selected for discriminatory reasons, the remedy may be to hire you for the position you were seeking if it is determined that the job should have been rightfully yours. If you faced a discriminatory personnel or disciplinary action, the relief may include your agency rescinding that action. In cases where you are illegally denied a reasonable accommodation, your agency may be ordered to provide you a reasonable accommodation, such as adjustments to your work station or work schedule, or even reassignment.
- Reimbursement of Attorney’s Fees and Costs— Under most anti-discrimination statutes, federal employees are entitled to reimbursement of reasonable attorney’s fees and costs (such as postage, mileage, etc.).
The relief available in any given case often depends on the particulars of what occurred as well as what happened to the employee as a result of the discrimination. Also, every complainant’s priorities may be different. For example, an employee still working in a hostile work environment might value a reassignment more than compensatory damages, while another employee who as a result of harassment is experiencing depression, anxiety, and trouble sleeping even after obtaining a new position might focus on obtaining compensatory damages.
Resolution of an EEO Complaint
An EEO complaint may be resolved at the informal complaint stage through settlement, or you may choose to file a formal complaint and request a hearing before the EEOC, or to file a lawsuit in federal court. Regardless of the path your complaint takes, the majority of federal employees are able to resolve their EEO complaints through settlement at some point during the process, either through direct settlement negotiations or at a mediation session set up through the Agency or the EEOC.
Settlement discussions or mediation are typically voluntary options that may be your choice, although occasionally the EEOC orders that mediation or a settlement conference take place between the parties.
Both parties are entitled to include an attorney in any mediation. Without an attorney of your own, you are the only one in the mediation representing your interests, whereas the government will often involve its attorneys in any mediation process or settlement discussions.
While the majority of EEO complaints are resolved through settlement, there are cases where either the Agency is unwilling to offer the relief you are seeking in which case you will need to decide whether to continue pursuing your case before the EEOC, or in federal court.
FAQ for EEO Complaints
Most people who want to bring an EEO complaint are doing so for the first time and are not familiar with the details of the process. Answers to these commonly asked questions may help you better understand the process:
What does the overall EEO complaint process look like?
It is a lengthy process with strict deadlines for the employee, called the complainant, throughout. To initiate the process, you will contact an EEO Counselor at your agency about your situation within 45 days of when the discrimination occurred. You can either elect EEO Counseling or mediation. If you cannot resolve your complaint at the informal complaint stage, you will have 15 days to file a formal complaint. The agency will then have 180 days to investigate the complaint, after which you can request a hearing before the EEOC. There will be chances to settle the case throughout the process.
What happens once an EEO Counselor is contacted?
The EEO Counselor will send you paperwork to complete, including an intake form, a notice of rights and responsibilities, and a form to elect either EEO Counseling or Mediation/ADR.
What do I need to do after I file my formal EEO complaint?
If your complaint is not resolved in the informal complaint stage, you will be issued a Notice of Right to File a formal complaint giving you 15 days to file a formal complaint. Once you file, the Agency has 180 days to investigate the formal complaint.
What do I need to do to make sure my EEO case is successful?
The best way to ensure the success of an EEO case is to hire an attorney experienced in federal employment law. While the process does not require that you have an attorney, the government will have be represented by an attorney.
How long do EEO complaints and investigations take?
The Agency has 180 days to complete its investigation of your formal complaint. Once you request a hearing before the EEOC, it can take anywhere from several weeks to several months for the EEOC to assign an Administrative Judge, who will then determine the scheduling of the proceedings.
Who will review my EEO case?
An EEO Counselor will be assigned to review your case and inquire into the details. Once you file a formal complaint, it is assigned to an investigator, often a contractor, who will put together a Report of Investigation. Only the EEOC Administrative Judges actually make determinations on whether discrimination occurred.
What if I want to appeal the outcome of my EEO case?
If your complaint is dismissed without an investigation, or if you you are not satisfied with the outcome of your case at the EEOC, you can appeal to the EEOC’s Office of Federal Operations within 30 days of receiving a Final Agency Decision. At this stage, you are more likely to have a positive outcome if you enlist the help of a federal employment attorney.
How do I know if I have a legitimate EEO complaint?
You may talk with an attorney to get an assessment of the merits of your EEO complaint. An attorney’s ability to assess the complaint depends on the information available at the time. To get the best assessment, be honest about what occurred, and do not try to conceal any information that you believe may “hurt” your claim. The best way for an attorney to deal with potentially harmful evidence is to know about it as soon as possible.
What are some do’s and don’t’s?
- DO pay attention to your deadlines. You have 45 days to initiate an informal EEO complaint from the date of the discriminatory incident. You have 15 days to file a formal complaint from the date you receive a Notice of Right to File. You have 30 days to request a hearing before the EEOC from the date you receive a Report of Investigation.
- DO NOT delay contacting EEO because you are trying to work through issues internally with management or Human Resources.
- DO identify all protected basis that apply to your claim (e.g., race, sex, disability.
- DO NOT check off every protected basis box “just in case.” You are always permitted to add an additional basis during the process.
- DO keep it simple. You want to be able to convey what occurred, when it occurred, and why you believe the incident was discriminatory.
- DO NOT provide too much information. You do not need to provide the EEO Counselor extensive background information or evidence to support your claims. This also applies to formal complaints. You will have an opportunity to explain and provide evidence during the investigation.
- DO memorialize meetings or other verbal instructions or responses of concern in writing.
- DO NOT refuse to meet with your supervisor or comply with supervisory orders or instructions
- DO submit evidence within your custody that supports your case during the investigation.
- DO NOT break Agency rules to obtain evidence or conduct your own investigation. There are plenty of opportunities throughout the process to obtain evidence from the Agency including during the investigation or your formal complaint and during the discovery process.
- DO carefully review correspondence from EEO and the EEOC to catch hidden requests for information and deadlines
- DO NOT ignore EEO correspondence or assume it does not require action from you
A lawyer experienced in federal practice can make this process easier for you. Filing an EEO complaint against your agency is a big deal, and it will result in a tremendous amount of stress. When you get to the investigation stage, your agency will be aware of your complaint and your co-workers may be interviewed by the EEOC as part of the investigation. If you continue to work for this agency, your days have the potential to be very uncomfortable.
An attorney can provide the support you need to follow through with your complaint while handling all filing deadlines. Through his or her experience, a federal employment lawyer can give you the confidence to know you are proceeding within your rights under federal law, as well as advise you on details and strategy.
Learn how The Federal Practice Group can help fight your EEO case. Fill out the online contact form or call the office for a consultation.