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Overview of the EEO process for federal employees

The U.S. Equal Employment Opportunity Commission (EEOC) is a federal agency that processes discrimination and retaliation complaints that fall under federal laws such as Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).  However, the EEO process for federal employees is very different than for non-federal workers. A non-federal employee begins his/her case by filing a charge with the EEOC. After 180 days, a non-federal employee’s only option is to file a lawsuit in federal court. However, Congress created a special administrative process for handling federal workers’ discrimination and retaliation cases.  Here is an overview of the EEO process for federal employees: 

What are the steps in the EEO process for federal employees?

Filing a discrimination or retaliation complaint is a multi-step process for federal employees, and each step has a strict deadline.

Step 1: Contact an EEO counselor.

Within 45 days of the discrimination or retaliation, you must contact your agency’s EEO counselor.  To make this initial contact, you can simply send an email, pick up the phone, or stop by your agency’s EEO office.  You don’t have to provide a lot of details about what happened, but you must tell the counselor you want to file a complaint of discrimination or retaliation.  After you contact a counselor, you have two options:

  • Informal counseling: This is a 30-day process during which the counselor conducts a short and informal investigation. The counselor may interview you and the person you believe discriminated against you.  At the end of the counseling period, the counselor will issue a report and advise you of your right to file a formal complaint.
  • Alternative dispute resolution: Instead of counseling, you may choose to participate in alternative dispute resolution (ADR), which is also called mediation. If you choose ADR, the agency will appoint a mediator who will meet with you and (usually) your supervisor.  The goal of the meeting is to resolve your complaint. For example, say you claim your supervisor discriminated against you by denying your training request. Through ADR, you may agree to drop your complaint if your supervisor sends you to another training session.  If you’re unable to resolve your complaint at ADR, the agency will advise you of your right to file a formal complaint

Step 2: File a formal complaint.

At the end of informal counseling or ADR, the agency will give you written notice that you have the right to file a formal complaint within 15 days.  The agency typically includes a copy of the complaint form with this notice. If you want to continue with your case, you must submit your complaint on time.

Step 3: Participate in the investigation.

After you file your formal complaint, the agency must investigate your claims within 180 days.  The agency will appoint an investigator. The investigator is only responsible for collecting evidence; he/she won’t make a decision about whether the agency discriminated or retaliated against you.  The investigator will contact you to either provide written answers to a list of questions or schedule an interview. You may also send the investigator documents relating to your claims. The investigator will also collect information and documents from agency managers and witnesses involved in the case.  At the end of the investigation, the investigator will compile all of the documents and testimony into a Report of Investigation (ROI). The agency will send you a copy of the ROI, along with a letter about your options.

Step 4: Decide how to proceed.

If the investigation ends or is still active after 180 days since filing your formal complaint, you will have two primary options:

Request a FAD.

A final agency decision (FAD) is a detailed, written decision on your case from the agency.  The agency must issue the FAD within 60 days. As you can imagine, it is very likely that the agency will conclude that it did not discriminate or retaliate against you.  However, you can file an appeal with the EEOC Office of Federal Operations (OFO). The OFO is a special branch of the EEOC that deals with federal employee appeals. The appeal process doesn’t include a hearing.  You can file a written legal argument and submit documents to prove that the agency discriminated or retaliated against you. The agency will have an opportunity to file a written response. Then, the OFO will make a decision.

Ask for a hearing.

You may request a hearing before an administrative judge (AJ) who works for the EEOC, not the agency.  Within 30 days of receiving the notice about your rights, submit your hearing request to the EEOC and the agency.  Once appointed, the AJ will schedule an initial teleconference to discuss the hearing process and set deadlines in the case.  The hearing process includes discovery, which is a process where the parties exchange information and documents.  The AJ will decide whether a hearing is necessary to make a decision in your case. If the AJ schedules a hearing, you and the agency will have the opportunity to appear before the judge and present evidence and call witnesses.  Regardless of whether there is a hearing, the AJ will issue a written decision on your case. If you disagree, you may file an appeal with the OFO (see above).

File a lawsuit in court.

Generally, federal employees must go through the administrative process (i.e., complaint, investigation, and a FAD or an AJ hearing) before filing a lawsuit in court.  However, you can go directly to court if your case involves:

  • Age discrimination
  • Gender-based pay discrimination under the Equal Pay Act

Additionally, there are other times during the administrative process when you can file a lawsuit.  For example, you can abandon the administrative process and file in court within 90 days of receiving a FAD, as long as you haven’t filed an appeal with the OFO.

Who will make the decision in my case?

The decision maker depends on whether you request a FAD, ask for an administrative hearing, or file a lawsuit:

  • FAD: The Agency makes the decision.
  • EEOC hearing: The EEOC AJ makes the decision.
  • OFO appeal: The EEOC OFO makes the decision.
  • Lawsuit: A federal district court judge and/or jury will make a decision.

Can I get damages through the federal EEO process?

In general, the EEOC, AJs, and agencies can award the same types of damages that you could get through a lawsuit in court.  Here are the primary types of relief in EEO cases:

Lost wages

You can seek pay you lost because of illegal discrimination or retaliation. This is sometimes called back pay.  For example, if the agency didn’t hire you for a job because of your race, you may be able to recover the amount of pay you would have received if you had been hired.  Similarly, if you prove that the agency denied you a $500 bonus because of your religion, the EEOC could order the agency to pay you $500 for the bonus.

Compensatory damages

These are monetary damages to compensate you for any physical, mental, and/or emotional harm. To get compensatory damages, you must have evidence about the type, duration, and extent of your harm.  Evidence may include sworn testimony from witnesses and medical records. You must also prove that the harm resulted from the illegal discrimination and retaliation, instead of any other cause. By law, $300,000 is the maximum compensatory damages award.

Attorney’s fees and costs

If you win your case, you can recover your attorney’s fees. You may also be able to recover certain litigation costs, such as fees for court reporters and deposition transcripts.  However, you can’t recover fees and costs for age discrimination claims in the administrative process.

Non-monetary relief

You may also obtain non-monetary relief through the federal EEO administrative process. For example, if you prove the agency fired you because of your disability, the agency must return you to your job.  If you prove your supervisor gave you a bad performance rating because you filed an EEO complaint, an EEOC judge could order the agency to change your performance rating. The EEOC can also do things like order supervisors to undergo EEO training.

Do I need an attorney to file an EEO complaint?

Federal employees aren’t required to have an attorney in discrimination and retaliation cases.  However, the EEO process for federal employees can be confusing, and it may be helpful to consult an employment attorney.  An experienced lawyer can assess the strengths and weaknesses of your case and can provide guidance about what information to provide in your complaint and during the investigation.  Your attorney can also recommend whether you should request a FAD, ask for a hearing, or file a lawsuit in federal court.

If you believe your federal employer discriminated or retaliated against you, Alan Lescht and Associates can help.  We represent federal government employees and contractors in discrimination and retaliation cases.  Our attorneys will help you navigate the EEO process, draft your complaint, respond to the investigator, and present your case to the EEOC or in court.

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