Federal Employees – Discrimination

Yes. When you are a federal employee and you believe that you have been the subject of discrimination or retaliation, you must go through an administrative process to resolve the situation. Retaliation for reporting discrimination includes both retaliation motivated by the employee’s participation in the EEO process, such as providing a witness statement, or opposing conduct that EEO law outlaws. The first thing you must do to start this process is to contact an EEO counselor at the Agency where you are employed. This step is called “initiating the EEO process.” You must initiate the EEO process within 45 days of the last discriminatory or retaliatory incident.

The law provides that the time limit is extended if you show that:

You were not notified of the time limits and were not otherwise aware of them;You did not and reasonably should not have known that the discriminatory matter occurred; orYou were prevented by circumstances beyond your control from contacting the counselor within the time limits.

You should assume that you only have 45 days because it may be difficult to prove that these exceptions should apply to your situation.

The counselor will discuss the claims with you and may have you fill out pre-complaint paperwork. The counselor will advise you about the EEO process, but the counselor should not give legal advice, as the counselor works for the Agency.

EEO counseling generally lasts 30 days, unless you agree to a longer period. During the counseling period, the counselor should advise you about your concerns and attempt to resolve them.

While it is possible to gain resolution informally through the counselor in the counseling stage, it does not occur very often. However, you and the Agency may agree to early Alternative Dispute Resolution (ADR) or mediation during the counseling period, which will extend the counseling period, usually to 60 or 90 days instead of 30 days.

Some cases are suitable for early ADR. Early ADR is an opportunity to resolve a complaint early on in the process, saving time, money, and resources, for all parties involved. Early ADR may also preserve the working relationship, allowing both parties to interact amicably in the future. However, both parties need to agree to ADR as it is voluntary. Early ADR is best for cases where the facts are relatively straightforward and little further investigation or discovery is necessar

If the issue is not resolved in the ADR process within 90 days of beginning the EEO process, you must be given a Notice of Final Interview so that you can file a formal complaint. As an employee, you have 15 days from the time you receive the Notice to file a formal complaint.

The complaint is a signed statement from the employee or the employee’s attorney. The complaint should state the bases of discrimination, for example, age, sex, disability, or retaliation. The complaint should also state the incidents, or issues, which you believe show discrimination or retaliation, including dates. It should name the individuals that you are arguing are responsible for the discrimination or retaliation. Finally, the complaint must include the employee’s telephone number and address.

The complaint may also ask for the remedy requested. A remedy is the damages or reward you are asking the court to grant you. While you do not have to list every remedy specifically, you should state that you want compensatory damages (up to $300,000, although an amount need not be specified), attorney fees and costs, and any other relief that would make you whole. Punitive damages are not available against the U.S. government in EEO cases.

After filing the formal complaint, the Agency may issue an acceptance letter, a partial acceptance dismissal letter, or a dismissal letter. These letters show that the agency you’re accusing is either accepting or denying all or part of the claims in the formal complaint. It is important that you review this letter carefully and assure that it covers all the bases and issues you desire. If it does not, you should write a letter within the time period allowed, often 5 or 7 days, to the Agency explaining why the Agency incorrectly determined the bases and/or issues. The Agency very often will not adjust the bases or issues accordingly, but you can address your concerns at trial or on appeal. The issue can be raised again before an EEOC Administrative Judge, in the case of a partial acceptance dismissal, or the EEOC Office of Federal Operations, in the case of a complete dismissal.

Yes. Once the complaint has been accepted, the complaint is forwarded on to an EEO investigator, who either works directly for the Agency or works for the Agency on a contract basis. The agency must complete the investigation within 180 days of the filing date. The investigator will interview witnesses and gather documentation regarding the complaint. The investigator may conduct the investigation through in-person interviews, telephonic interviews, or through written questions that you must answer under oath, known as affidavits. You will either meet with the investigator and sign off on a written affidavit or submit written to the questions responses, under oath. It is very important that you give a full and complete version of the facts during the investigation. You can also provide the investigator with relevant documentation.

Most importantly, you should tell the investigator, in writing, as part of your affidavit, what supportive witnesses the investigator should interview and what information those witnesses can testify about. You should make sure you tell the investigator, in writing, through your affidavit, why you think the Agency discriminated or retaliated against you, including if others outside of your protected class were treated more favorably, how, by whom, and when.

Maybe. After the investigator gathers information from witnesses and management, the investigator often gives you a chance to rebut management affidavits. This means you can argue against anything you think is untrue. When doing so, you should rebut each affidavit point-by-point in a clear manner. You should always keep in mind that the investigation is the only information the Administrative Judge (AJ) will have about your case until the hearing. You should also keep in mind that the Agency will review the Report of Investigation (ROI) and determine its position on resolution based, in part, on the ROI. So it is very important for you to tell the whole story in the ROI and list all relevant supportive witnesses and facts in a clear and concise manner

The ROI should be issued within 180 days of when you filed the complaint. Within 30 days of when you receive the closing notice of investigation or after 180 days from filing has passed, you may request a hearing with an EEOC Administrative Judge (AJ). An AJ will then be assigned to the matter and will issue an order to the parties, including many important deadlines, with which the parties must comply or risk prejudicing their case.

Yes. AJ will give the parties the opportunity to conduct discovery, in order for each side to access information from the other side that is relevant to their case. The discovery process includes asking the opposing party for additional information through written questions, written requests for production of documents, written requests to admit certain allegations, and depositions. Depositions usually take place at counsel’s office in the presence of a court reporter. Depositions consist of the lawyer asking the witness questions about the case. Transcripts from depositions can be used at a hearing to show a witness’s inconsistent testimony or, in certain situations, if the witness is unable to appear in court. It is very important that you as the Complainant prepare for your deposition correctly by reviewing the record of your statements and making sure your answers are consistent

In general, discovery is a very important process because it allows the parties to gain more information about the case and to hopefully support their arguments. Based on discovery, the parties can often better decide whether their case meets the legal burdens it will need to meet to be successful at hearing. Discovery usually lasts approximately 90 days.

It is your burden to prove that your employer intentionally engaged in adverse treatment because of your status as a member of a protected class, or the employer’s conduct or policies were discriminatory. In retaliation cases, the you must prove that you suffered adverse treatment resulting from filing a complaint against the employer or participating in another’s filing of a complaint. For example, after you allege in your EEO complaint that an adverse action was taken against you because of race the agency has the burden of explaining why it took the action and that those reasons are legitimate, non-discriminatory and non-retaliatory. The burden then switches to the employee to prove there is direct or indirect evidence of a discriminatory or retaliatory motive. This would include a statement by your employer indicating bias or intent, or that the nondiscriminatory reasons offered are not true. If you cannot prove that the nondiscriminatory reasons given are not true, you cannot win your EEO claim.

After the discovery period ends, the parties prepare for the hearing, a session with the administrative judge where both sides present evidence. The parties may also make additional attempts at resolving the case, based on what was uncovered in discovery and their review of the case material.

The period before the hearing may consist of motions to decide the case without a hearing (usually brought by the Agency), pre-hearing submissions (listing witnesses, expected testimony, issues to be tried, and exhibits), a pre-hearing conference with the opposing party and the judge, and perhaps a settlement conference or alternative dispute resolution (ADR) session. The Agency Judge (AJ) may pressure the parties to resolve the complaint. In doing so, the AJ may discuss the settlement with one party or both. If the complainant fails to accept the offer within 30 days of receiving it, and the relief awarded to the complainant at the end of the case is not more favorable than the resolution offer, then the complainant shall not receive payment from the agency of attorney’s fees or costs incurred after the expiration of the 30-day acceptance period.

The EEO hearing is conducted by the Agency Judge (AJ), either at the EEOC field or regional office, the Agency office, or at a location designated by the AJ. At the EEO hearing both parties are given an opportunity to do a short (often five to ten minutes) opening statement.

In EEO complaints, the Complainant bears the burden of proof at all times, although the burden of persuasion shifts. Therefore you will present your witnesses first, after the opening statements. Your witnesses should probably include:

You, as the Complainant;Any co-workers who witnessed the treatment alleged and ideally who support your claims of discrimination and/or retaliation;Your doctors (especially important in disability cases, but also important as to damages in other cases); and,Your family members (to most often testify to damages, such as pain and suffering).

Hearsay is allowed in administrative proceedings.

After you call all of your witnesses, the Agency will call witnesses, the Agency will call witnesses. You have a right to properly question all Agency witnesses, as the Agency has with you and your witnesses. After the Agency witnesses testify, you are given an opportunity for rebuttal. During rebuttal, you should clear up anything you believe to be unclear or untrue about Agency’s testimony.

Both parties may use physical documents or things at the hearing, as long as the parties comply with the rules by notifying the AJ of the evidence and getting the AJ’s approval before the hearing. Each party is given an opportunity to do short closing arguments or written briefs instead of oral closing arguments

After the hearing, the AJ may make a bench decision, which is an oral decision on the record. Otherwise, the AJ will issue a written decision. The written decision must then be accepted or rejected by the Agency in a Final Agency Decision (FAD). After the FAD is issued, several types of appeals may be brought. You as the Complainant have the opportunity to appeal the decision to the Equal Employment Opportunity Commission (EEOC) Office of Federal Operations. Instructions for such appeals should be contained in the FAD. Appeals must be filed with EEOC’s Office of Federal Operations (OFO). Further instructions for such appeals should be contained in the FAD. For more information, please see the EEOC’s Federal EEO Complaint Processing Procedures.

Yes. You can file a federal court lawsuit if one of the following conditions are present:

180 days have passed since you filed your formal EEO complaint and the EEO investigation has not been completed.You receive a Report of Investigation on your EEO complaint and you choose to file a lawsuit rather than request a final agency decision or request a hearing with an EEOC Administrative Judge.You requested an EEOC Administrative Judge hearing and the AJ issued a decision against you or the AJ issued a decision in your favor, but it was rejected by the Agency. In either case, you will have 90 days from the date of the final agency decision based on the EEOC AJ’s decision to file a lawsuit in federal court.If you file an appeal of the final agency decision or the EEOC AJ’s decision to the Office of Federal Operations of the EEOC, and the OFO/EEC finds against you, you will have 90 days from the date of the OFO/EECO decision to file a federal court lawsuit.If you file a federal court lawsuit, it is a “de novo” review by the court. This means that the case starts over, no matter what the decisions may have been by the EEOC AJ or the Agency. You will have the opportunity to conduct discovery and prove your case in a jury trial.If you have filed your appeal with the Equal Employment Opportunity Commission and the Equal Employment Opportunity Commission has not issued a decision for 180 days or more since you filed your appeal, you can file a lawsuit.

Getting legal advice as early as possible when you believe you have been discriminated against or retaliated against is highly recommended. A legal consultation with an attorney experienced in federal employee claims will evaluate your facts under current laws and court decisions and give you the pros and cons of your case. There are many factors that go into a case evaluation. You may be going through this EEO process once or twice in your career, whereas the agency personnel and EEO representatives do this every day. If you are not informed on how the process works and what evidence is needed, the agency and management may create a record to defend against your case and you may not understand how to find and present evidence in your favor.

Getting a consultation does not mean the attorney must represent you throughout the process or in federal court. Knowing the strengths and weaknesses of your case as early as possible can save you money and effort and can assist you in documenting and finding the evidence you need to win your EEO case or to find reason to withdraw your EEO case. Finally, if you win your case before the EEOC AJ or in federal court, your attorney’s fees will be paid by the agency. In most settlements, your fees are also paid by the agency. Many attorneys will represent federal employees on a contingent fee basis if there are sufficient facts to support your EEO claims.

Want to learn more about your rights as a federal employee? Order the Federal Employees Legal Survival Guide, published by Passman and Kaplan and Workplace Fairness.

The Rehabilitation Act of 1973 applies to federal employees, federal contractors, and other programs that are recipients of federal funding, whereas the Americans with Disabilities Act of 1990 applies more generally to employment, places of public accommodation, government services, transportation, and telecommunications.

The Rehabilitation Act of 1973 mandates affirmative action and nondiscrimination within executive agency hiring. It also requires that federal contractors and subcontractors with of more than $10,000 use affirmative action in hiring and prohibits discrimination.

Federal contractors can pursue discrimination claims as if they are a federal employee if they work onsite at an agency and if they are supervised by an agency supervisor.

If you have been discriminated against for the following reasons you can file a complaint with the Office of Federal Contract Compliance Programs: you race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran or retaliated against for discussing your pay with a coworker.

You must file your complaint within 180 days of the date of discrimination for claims on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, or on compensation inquiries, discussions, or disclosures. This timeline can be extended for good cause with approval from the Director of Federal Contract Compliance Programs.

You must file your complaint within 300 days of the date of discrimination for claims on the basis of disability or status as a protected veteran. This timeline can be extended for good cause with approval from the Director of the Office of Federal Contract Compliance Programs.

You can file with the Office of Federal Contract Compliance Programs by filling out the Complaint of Discrimination in Employment Under Federal Government Contracts form and submitting it to the Office of Federal Contract Compliance Programs electronically, by mail, or by fax to your Office of Federal Contract Compliance Programs regional office or in person at any Office of Federal Contract Compliance Programs District or Area office.

The only addition I have is that federal contractors can pursue discrimination claims as if they are a federal employee if they work onsite at an agency and supervised by an agency supervisor, We should make this clear in the revised language. Let me know if you have any questions.

This Guide to Writing Appeal Briefs for Unrepresented Complainants” is a resource for federal employees and applicants who do not have legal representation. The guide explains what content should be included in an appeal brief and how it should be organized. The guide also helps make the appeal process more accessible by providing an explanation of how to support or oppose an appeal, sample briefs that can be downloaded and used as templates, and a glossary for technical and legal terms.