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Summary of Federal Employees’ EEO Discrimination Complaint Process

This guide is for information only and is not legal advice. Legal advice must be tailored to specific facts. This guide is based on general legal principles and does not address all possible claims, exceptions or conditions related to the subject matter discussed.

by Marilynn Mika Spencer

Federal government employers must follow the same non-discrimination employment laws that private sector and other public entities must follow. But the entire process is different – so different that there is a need for a guide like this to get you started on the process.

Federal sector employees have a very short time to initiate a charge of discrimination. The employee must take his or her first step within 45 days of the discriminatory act by contacting the equal employment opportunity (EEO) office within the employee’s own agency to request informal counseling (sometimes called an “informal complaint"). The 45 days is mandatory ; if the employee misses this deadline, the employee will never be able to bring the discrimination complaint. ??

The EEO office might offer mediation (informal resolution) to the parties to try to settle the case. Be careful before agreeing to mediation; sometimes the employee who filed the case (the complainant) will lose the right to continue the EEO process if he or she agrees to mediation.

If the parties do not both agree to mediation, the agency’s EEO office will assign a counselor to the case. The counselor does not make a decision about whether discrimination took place. The counselor is supposed to interview the complainant and anyone else involved to collect information about what happened. The counselor will take the complainant’s sworn statement (affidavit). The EEO counselor may try to resolve the problem informally during the investigation. If not, at the end of the investigation, the counselor will prepare a report about what happened. The agency will give the complainant a document saying the complainant has the right to file a formal complaint with the agency’s EEO office.

The complainant then has only 15 days to file the formal complaint of discrimination. The 15 day deadline is mandatory, just like the deadline for informal counseling; if the employee misses this deadline, the employee will never be able to bring the discrimination complaint. ??

The agency will assign an investigator who will look at relevant documents, interview the complainant and interview witnesses. The results of the investigation are compiled into a large volume called the Investigative File (IF). The agency has 180 days to prepare the investigative file, though sometimes the agency does not meet its deadline.

The IF is supposed to have enough information to determine whether discrimination took place, but the IF usually misses a lot of important information and/or gets the facts wrong in significant ways. The complainant has to be careful to go through the file and properly request additional information.

The federal sector EEO process is a rat’s maze. It is complicated, full of traps and time limits, and in many ways it is irrational. But employees have to go through this system. Nearly everyone needs an attorney to do this right.

While the law is mostly the same as the law in the private sector, the procedures are completely different, and each step on the path has a short turn-around time. Complainants are severely disadvantaged going through this without an attorney. Most plaintiffs employment attorneys do not handle cases for federal sector employees because of the procedural hurdles.

There is some good news regarding finding legal representation for a federal sector EEO case. Because the charge is handled within the federal agency (at least at first), a complainant can use any attorney from any state. Actually, a complainant is not required to have any attorney at all – anyone can be a representative – but because of the complexity, it is unusual for a non-attorney to be competent to handle these cases.

You can find a plaintiffs employment attorney on the National Employment Lawyers Association (NELA) web site. NELA is the largest and most influential bar association in the country for attorneys representing working people. You can search by location and practice area – make sure you contact attorneys who list that they represent federal sector employees. Also, NELA has affiliates in every state and many cities which are listed on the NELA site. Not all NELA attorneys are named on the web site or affiliate site. This should not influence your selection; attorneys can choose whether or not to purchase a listing in the national directory, and each affiliate has its own rules for listing.

If you want to try to go forward on your own, first understand that there are many things that can go wrong and can never be un-done.You can get more information on the federal employee EEO process on the federal employee page of the Equal Employment Opportunity Commission (EEOC) web page.

Dewey Publications publishes quality research materials on federal employment law: http://deweypub.com/store/. These books are expensive, so you may want to call your local law library and ask if it has the book. Local law schools have libraries which may contain Dewey Publications books, too.

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