Federal employees – just like employees in private industry – have a right to be free from discrimination and illegal harassment in the workplace. Federal employees must follow special procedures and rules, however, which are governed by the Equal Employment Opportunity Commission (EEOC).
The EEOC is an independent agency charged with enforcing federal anti-discrimination statutes. This includes federal laws that prohibit discrimination and harassment on the basis of race, sex, color, national origin, disability, pregnancy, religion, genetic information, and age. Each federal statute also has an anti-retaliation provision prohibiting reprisal against any individual who engages in protected EEO activity. Protected EEO activity includes participating in any EEO process (such as being a witness or filing a complaint) or opposing activity which the individual believes is discriminatory (such as telling a manager that co-worker is creating a hostile work environment).
The EEOC’s federal sector program is designed to provide federal employees and applicants with an administrative avenue for pursuing discrimination claims against the federal government – without having to dive into federal court. The EEOC’s federal sector program is less formal than a judicial process, but provides equal relief, which may include damages for lost earnings or other calculable harms, compensation for non-calculable harms like emotional distress and damage to career, reimbursement of leave used because of the discrimination, and attorney fees for successful claims (except in age-based cases).
As a general rule, most federal employees must initiate their discrimination claims within forty-five (45) days of the most recent discriminatory event. In contrast, in the private sector, employees have 180 days and often times up to 300 days. The “45-day rule” has some exceptions and does not apply in all cases. (The laws relating to Congressional employees are different and are covered by the Congressional Accountability Act.) An employee is allowed to have an attorney representative throughout the EEO process.
To start a discrimination complaint, a federal employee or applicant (or his or her attorney) should contact his or her agency’s EEO office. The EEO office will conduct an in-take session and a 30-day counseling period. An EEO counselor or specialist may gather information and try to resolve the case. It is important that during the counseling phase, the employee or applicant identify each event and action the agency took which was discriminatory or retaliatory.
The EEO office is responsible for issuing to the employee – who is now a “Complainant” – a notice of right to file a formal complaint. The Complainant must file the complaint with the appropriate office, identified in the notice, within 15 calendar (not work) days. The Complainant must ensure that the EEO office receives the complaint on or before the 15th day or, alternatively, that the complaint is post-marked on or before the 15th day. To ensure that the complaint is properly filed, the Complainant should file in such a way that he or she can later prove timely filing, such as certified mail or fax with fax confirmation.
After the Complainant files the complaint, the EEO office should issue a letter acknowledging the complaint and then another letter accepting and/or dismissing claims identified in the complaint. A complaint can include more than one claim, such an allegation of a non-promotion and an allegation that the agency failed to provide accommodations for a known medical condition. Assuming the Agency accepts at least one claim for investigation, the Agency will then investigate the claim. The Agency is required to complete its investigation within 180 days (assuming the Complainant does not amend the complaint). The Agency is not, however, required to use any particular methods for investigating, but must ensure that the resulting investigative report is sufficiently detailed to allow “a reasonable fact finder to draw conclusions as to whether discrimination occurred.”
The Agency is required to provide the Complainant with a copy of the Report of Investigation (ROI) with a notice of “election of remedies.” The election of remedies notifies the Complainant that he or she may choose one of three options: a final agency decision; a hearing before an EEOC administrative judge; or a jury trial in federal court.
Request a final agency decision. Under this avenue, the agency will review the ROI and determine whether the Agency illegally discriminated against the Complainant. If a Complainant chooses this route, he may not later seek a hearing before an EEOC administrative judge.
Hearing before an EEOC administrative judge. Under this path, the Complainant can be represented by an attorney and can engage in full discovery (demand documents, data and evidence and can force federal employees to participate in a recorded oral examination called a “deposition”). An EEOC administrative judge decides whether the Agency discriminated or retaliated against the Complainant and, if so, what relief is appropriate. If the Complainant is not happy with the administrative judge’s decision, the Complainant may appeal the decision within the EEOC and/or pursue the case in a trial in federal court.
The third option is to file a complaint in federal court. In most cases the Complainant may demand a jury trial. Once a Complainant chooses to pursue his or her claims in court, he may no longer seek a hearing before an administrative judge. The relief available in court is the same as the relief available through an administrative judge.
At ALG, our attorneys have invaluable experience in representing federal employees through the federal sector EEO process. We ensure that the informal counseling identifies all the possible claims and that the Agency effectively investigates the claims. When an Agency fails to meet its obligations to investigate timely and fully, we take aggressive action to seek sanctions from the assigned EEOC administrative judge.
If you think you have been discriminated against by your federal agency, contact us. Our goal is to ensure that you have the information you need to make effective, well-informed decisions about how to protect and enforce your rights. We can talk with you about your unique situation and evaluate whether you have a viable discrimination or EEO retaliation claim. We can recommend strategies for presenting the most important evidence. We will evaluate the value of your case and what you might recover if you are successful in your claims. Our attorneys are committed to giving you information and tools to make a strong case, whether you’re alleging sexual harassment or a failure to accommodate a medical condition.