The EEOC complaint process for federal employees can be confusing and is full of strict deadlines and hurdles that can trip up an individual’s case. For those who have the need to file an EEOC complaint against their employer, this article will detail the specific steps and timelines that individuals need to adhere to in order to seek justice for any discrimination they may have suffered.
What is the EEOC?
The U.S. Equal Employment Opportunity Commission is a federal agency tasked with upholding federal anti-discrimination and retaliation laws. Under federal law, it is illegal for an employer to discriminate against an employee or job applicant on the basis of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal for an employer to retaliate against an employee or job applicant who complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
These laws apply to every type of employment situation, including hiring, firing, promotions, training, wages, and benefits. The EEOC has the authority to investigate charges of discrimination against employers covered by the law, which generally includes most employers with at least fifteen employees (or twenty employees in the case of age discrimination). When a discrimination or retaliation complaint is filed with the EEOC, they investigate the charges and make a finding. The EEOC has the authority to attempt to settle charges against the employer, and, if unsuccessful, the EEOC is able to file a lawsuit to protect the victim as well as the public at large. But how does this process work? How do those who have been discriminated against have the EEOC investigate their situation?
For those who have been discriminated against in an employment context and want to file an EEOC complaint against their employers, there are some very specific steps that need to be taken.
Starting the Complaint Process
First, within 45 days of the offensive conduct, an employee must contact their agency EEO counselor to describe their situation. 29 C.F.R. Section 1614.105(a)(1). There are a few circumstances under which this deadline can be extended, such as not having knowledge of the discriminatory act during the applicable window to report the conduct. It is very important that each separate claim is itemized during the meeting with the EEO counselor, as it can be exceedingly difficult to add additional claims once the process has begun, and only claims that have been raised with the counselor, can be pursued in the EEO process.
During the counseling process, the EEO counselor will provide the aggrieved individual with information regarding the process, their rights, and the applicable time frames. Counselors must advise individuals in writing of their rights and responsibilities in the EEO process, including the right to request a hearing before an EEOC Administrative Judge or a final decision from the agency. Individuals must also be informed of their right to choose between pursuing the matter in the EEO process or the Merit Systems Protection Board appeal process (where applicable). The counselor must also inform the individual of their right to proceed directly to court in a lawsuit under the Age Discrimination in Employment Act; of their duty to mitigate damages; and that only claims raised in pre-complaint counseling may be raised thier complaint filed with the agency. 29 C.F.R. Section 1614.105(b)(1).
Counseling must be provided within 30 days from the time that the employee contacts the EEO office to request counseling. That can be extended by 60 days if the individual agrees in writing to an extension or agrees to participate in an Alternative Dispute Resolution (ADR) procedure with the Agency, in an attempt to informally resolve the matter.
Every agency has the discretion to create its own unique ADR program that is best suited for their particular environment. Mediation has been the most popular form of ADR offered by federal agencies in the EEO process. Be aware that some federal agencies set caps on settlement amounts they will offer during this process. If the individual decides to participate in ADR to attempt to resolve their complaint, all counseling activities will stop, until the ADR process is finished.
Filing a Formal Complaint
If the matter cannot be resolved through ADR or counseling, or if the counseling does not occur within the required time frame, or the claim cannot be informally resolved before the 90th day after contact with the EEOC counselor, the individual will be issued a Notice of Right to File a formal complaint, informing them of their rights. The notice must inform the individual that a Formal Complaint must be filed within 15 days of receipt of the notice; it must identify the agency official with whom the complaint must be filed; and it must notify the individual of their duty to inform the agency if he or she is represented. 29 C.F.R. Section 1614.105(d).
At this point, the employee will have a chance to file a Formal Complaint with the designated individual. It is important not to miss the 15 day deadline as the agency can reject a complaint for being untimely. Generally, Agencies have their own form to be filled out which they will provide, that will constitute the EEO complaint.
What Happens Next?
Complaints must include the individual’s information (name, address, and telephone number), a short description of the discriminatory events, the alleged reason for the discrimination, a short description of the injuries suffered, and either the signature of the individual or their representative. Agencies are required to give current employees a reasonable amount of time during work hours to prepare the complaint. The agency has 180 days to investigate, from when the individual filed their official discrimination complaint. The individual should put that date in their calendar, as they have the right to request a hearing before an EEOC administrative Judge if the agency does not abide by the deadline.
Once the complaint is filed, the agency must respond in writing, advising the individual that they have received the complaint, the date on which the complaint was filed, of the address of the EEOC office where a request for a hearing should be sent, that the complainant has the right to appeal the agency’s final action or dismissal of a complaint, and that the agency must investigate the complaint within 180 days of the filing date. The agency’s acknowledgment must also let the complainant know that should the individual wish to amend their complaint, the agency must complete the investigation within: (1) 180 days after the last amendment to the complaint; or (2) 180 days after the filing of the original complaint. The agency may ask the individual to agree in writing to provide an extension of time for the agency to conduct their investigation. This is usually ill-advised and will result in the agency dragging the process out far longer than is necessary.
If the investigation is not completed within the required 180 days and the individual did not agree to any extensions for the investigation, then a complainant may request a hearing from an EEOC Administrative Judge at any time after 180 days from the date of the first filed complaint. 29 C.F.R. Section 1614.106(e).
Investigation into the Complaint
If the agency accepts the complaint for investigation, they have 180 days to complete the process. Investigations are conducted by the agency. The agency must develop an impartial and appropriate factual record upon which to make findings on the claims raised by the complaint. An appropriate factual record is defined in the regulations as one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. 29 C.F.R. Section 1614.108(b). A copy of the completed Report of Investigation file must be provided to the complainant, along with a notification that, within 30 days of receipt of the file, the individual has the right to request a hearing and a decision from an EEOC Administrative Judge or they may request an immediate final decision from the agency. 29 C.F.R. Section 1614.108(f).
During this time, the agency may continue to offer possible resolutions to the individual. The agency can make offers of resolution any time after the complaint is filed up to 30 days prior to a hearing with an EEOC Administrative Judge. Any such offer of resolution must be in writing and include a notice explaining the possible consequences of failing to accept the offer. If the complainant fails to accept an of resolution within 30 days of receipt, and the relief awarded in the final decision on the complaint is not more favorable than the 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. 29 C.F.R. Section 1614.109(c).
When the investigation is finished, the agency will give the individual three choices: either request a hearing before an EEOC Administrative Judge; dismiss the Complaint; or ask the agency to issue a decision as to whether discrimination occurred.
If more than 180 days pass and the agency has not yet finished its investigation, the individual can wait for the agency to complete its investigation; ask for a hearing; or file a lawsuit in federal District Court. Once the individual asks for a hearing, the complaint will thereafter be handled by an EEOC Administrative Judge.
Dismissal of the Complaint
An agency may also dismiss a complaint, under certain circumstances, before the individual requests a hearing. There are several reasons that an agency might dismiss a complaint, including: (1) failure to state a claim, or stating the same claim that is pending has been decided by the agency or the EEOC; (2) failure to comply with the time limits; (3) filing a complaint on a matter that has not been brought to the attention of an EEO counselor and which is not like or related to the matters counseled; (4) filing a complaint which is the basis of a pending civil action, or which was the basis of a civil action already decided by a court; (5) where the complainant has already elected to pursue the matter through either the negotiated grievance procedure or in an appeal to the Merit Systems Protection Board; (6) where the matter is moot or merely alleges a proposal to take a personnel action; (7) where the complainant cannot be located; (8) where the complainant fails to respond to a request to provide relevant information; (9) where the complaint alleges dissatisfaction with the processing of a previously filed complaint; (10) where the complaint is part of a clear pattern of misuse of the EEO process for a purpose other than the prevention and elimination of employment discrimination. 29 C.F.R. Section 1614.107.
If an agency believes that some, but not all, of the claims in a complaint should be dismissed for any of the above reasons, it must notify the complainant in writing of the reason for this determination, identify the allegations which will not be investigated, and place a copy of this notice in the investigative file. This determination shall be reviewable by an EEOC AJ if a hearing is requested on the remainder of the complaint, but is not appealable until final action is taken by the agency on the remainder of the complaint. 29 C.F.R. Section 1614.107(b). If an agency dismisses a complaint, that individual has 30 days to appeal the agency’s dismissal. 29 C.F.R. Sections 1614.401(a), 1614.402(a).
Requesting a Hearing Before an EEOC Administrative Judge
If the investigation is not completed within the required 180 days and the individual did not agree to any extensions for the investigation, then a complainant may request a hearing from an EEOC Administrative Judge on the complaint any time after 180 days from the date of the first filed complaint. 29 C.F.R. Section 1614.106(e). Requests for a hearing must be sent by the complainant to the EEOC office indicated in the agency’s acknowledgment letter, with a copy to the agency’s EEO office. Within 15 days of receipt of the request for a hearing, the agency must provide a copy of the complaint file to the EEOC. The EEOC will then appoint an Administrative Judge to conduct a hearing. 29 C.F.R. Section 1614.108(g). Prior to such hearing, the parties are able to conduct discovery to gather relevant information in order to aid them in presenting their case during the hearing. Usually, each party is responsible for their own discovery costs, but the EEOC Administrative Judge may require the agency to cover such costs if the agency failed to timely investigate or adequately investigate. The rules of evidence are not strictly applied in such hearings, and the hearings are not open to the public.
After a EEOC Administrative Judge has issued a decision, the agency must take final action on the complaint by issuing a final order within 40 days of receipt of the EEOC Administrative Judge’s decision. The final order must notify the complainant whether or not the agency will fully implement the decision of the EEOC Administrative Judge, and shall contain notice of the complainant’s right to appeal to the EEOC, Office of Federal Operations, or to file a civil action. If the final order does not fully implement the decision of the EEOC Administrative Judge, the agency must simultaneously file an appeal with EEOC and attach a copy of the appeal to the final order. 29 C.F.R. Section 1614.110(a). If an agency does not issue a final order within 40 days of receipt of the EEOC Administrative Judge’ decision, then the decision becomes final. 29 C.F.R. Section 1614.109(i).
After an agency issues their final decision, the complainant has 30 days to appeal the agency’s decision. 29 C.F.R. Sections 1614.401(a), 1614.402(a). Similarly, the agency may appeal the decision of the EEOC Administrative Judge. To appeal the agency’s decision, the individual must file an appeal with the EEOC’s Office of Federal Operations (OFO). The individual can then submit a statement or brief, in support of their appeal within 30 days of filing the appeal.
An agency must submit the complaint file to the OFO within 30 days of initial notification that the complainant has filed an appeal. 29 C.F.R. Section 1614.403.
Filing Civil Action
Before they can file a civil action on their claims, a federal sector complainant must first exhaust the administrative process set out at 29 C.F.R. Part 1614. After going through the administrative process, an individual can file a lawsuit against their agency in the appropriate federal court. That lawsuit can be filed under the following circumstances: (1) within 90 days of receipt of the final agency decision (FAD) if no administrative appeal has been filed; (2) after 180 days from the date of filing a complaint if an administrative appeal has not been filed and final action has not been taken (basically if the agency did not adhere to their investigation timeline); (3) within 90 days of receipt of EEOC’s final decision; or (4) after 180 days from the filing of an appeal with EEOC if there has been no final decision by the EEOC. 29 C.F.R. Section 1614.408. Filing a civil action terminates EEOC processing of any pending appeal. 29 C.F.R. Section 1614.410.
Under the Age Discrimination in Employment Act (ADEA), a complainant may proceed directly to Federal Court after giving the EEOC notice of intent to sue. 29 C.F.R. Section 1614.201. This means that after they inform their EEO counselor of their complaint, they do not have to participate in the full EEOC process before filing suit. However, an ADEA complainant can pursue their complaint through the administrative process in 29 C.F.R. Part 1614 if they so choose, and then file a civil action in the same circumstances as other complainants.
If you are a federal employee experiencing discrimination, the EEOC exists to help you enforce your rights. Though we hope this article was informative and helpful regarding the steps a complainant needs to take in order to enforce their rights, the EEOC process is complicated and challenging, so it is always a good idea to consult an employment attorney for assistance with this process.