Attig Law Firm P.L.L.C

Frequently Asked Questions (Return to top)

These are some of the questions that are most commonly asked in our initial consultations. Hopefully, they are helpful toyou in understanding the EEOC process for Federal Employees and the process of working with an EEOC Attorney.

Right now, we're working on updating our FAQ - questions and answers. If there are any questions not here that you would like answered, please feel free to send us an e-mail by clicking here.

Before reading the questions and answers below, it is important that you understand a couple general themes of the law of discrimination in the workplace.

First, this area of the law is loaded with "legal terms of art" - these are, generally speaking, words that seem simple to understand to a lay person, but have special meaning to lawyers and judges. This is why so few pro-se complainants prove discrimination - even when it is occurring: the pro-se complainant often has no idea of the legal ramification of what a judge is telling them or what opposing counsel is telling the judge. We try to define some of those legal terms of art here, but these definitions can never take the place of having competent legal representation by your side throughout the process.

Second, very few federal employees actually successfully prove discrimination - not because it doesn't exist, but because the legal community has taken a very mechanical approach to analyzing claims of discrimination. In other words, lawyers and judges get caught up in the legal terms of art, the proofs, the elements, the exceptions and forget to look at what is really happening. So as you read the questions and answers below, if you start to feel lost in the complicated nature of the law, you're not alone. We feel that way too.

Finally, the discussion below can never take the place of competent legal counsel. The discussion below is meant to be a primer so that you can more easily understand and confidently discuss the complex law of employment discrimination as it applies to federal employees. What appears below is not legal advice. Contact a lawyer that is familiar with federal employee claims of discrimination before the EEOC if you would like to secure legal advice.

What claims can I bring before the EEOC?

There are a variety of statutes which prohibit employment discrimination against Federal employees. You can bring claims of discrimination against your  Federal employer under any of these laws. These laws create what are called "protected groups" - Congress has determined that individual members of these groups - or whole groups - may not be subject to some negative treatment because of their membership in the protected group.

As a Federal employee, you are entitled to a workplace free of disparate treatment based on race, color, religion, sex, or national origin. Individuals who are 40 years of age or older may also bring claims against the Federal government under the Age Discrimination in Employment Act (ADEA). Finally, the Americans with Disabilities Act (ADA) and the Rehabilitation Act prohibit discrimination against federal employees who are qualified individuals with disabilities.

What does "disparate treatment" mean?

Disparate treatment is a legal term of art that means, in the context of employment discrimination, that a federal employee in a particular protected group is treated differently than other similarly situated employees not in that protected group. That's a mouthful. The phrase "similarly situated employee" is crucial in employment discrimination, and is the key component of the mechanical analysis we mentioned above. If a judge - or a jury - finds that another federal employee, who is the same as the employee alleging discrimination (same position, same supervisors, same grade, etc.), is treated in the same way as the employee alleging discrimination, there is likely to be a finding of "no discrimination".

What does "disparate impact" mean?

Disparate impact is another, and less common, way to prove discrimination. In these types of cases, the employer or management may enact a policy or regulation that is, on its face, non-discriminatory. In application, however, the rule may be found to have a disparate impact on a particular protected group of federal employees. A common example is an older hiring practice of refusing employment to applicants that have been only arrested. On its face, this doesn't seem to be a problem, but it has been held that in certain cities and in certain industries, such a policy can effectively result in excluding some ethnic groups from the federal workplace.

Disparate impact is proven, primarily, through statistical analysis of the groups that are and are not impacted.

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What do I have to show to prove discrimination based on "disparate treatment"?

This is not the case for all claims of discrimination, but generally speaking, to prove to an EEOC Judge (or jury in Federal District Court) that you have been treated differently because of your membership in a protected group, you have what is called the "burden of proof".

The federal employee must first prove a "prima facie" case of discrimination. Once the Federal employee proves a "prima facie" case of discrimination, the Agency must persuade the Judge or jury that they had a "legitimate, non-discriminatory reason" for the action they took. If they do persuade the Judge or jury of the legitimacy of their action, the federal employee has the burden of proving that the Agency's legitimate non-discriminatory reason is a pretext - a smoke-screen meant to hide discrimination.

The Federal employee's burden of proof is, generally speaking, a "preponderance of the evidence". I'll spare you the legal definition - the best way to describe it is that it is one feather more than 50%

What is a "prima facie" case of discrimination?

What is a "legitimate non-discriminatory reason"

What is "pretext"?

What is a hostile work environment?

What is Disability Discrimination?

There are, generally speaking, three ways that an employer can discriminate based on a disability.

The first is by enacting a rule or policy that, while not discriminatory on its "face", has a greater negative impact on disabled federal employees; this kind of discrimination is rare - but it does not require proof that your employer intended to discriminate against you.

The second is by treating a disabled federal employee differently (and most likely, less favorably) than a non-disabled federal employee - this is called disparate treatment.

The third is by failing to accommodate a federal employee who is a "qualified individual with a disability" - so long as that accommodation will not place an undue hardship on the employer.

How does the law define a disabled individual?

There are many different legal definitions of a disabled individual. Social Security, OWCP, and your State's unemployment commission will likely define it in all different ways. Under the ADA and Rehab Act, a federal employee is disabled if (s)he "has a medical condition which substantially limits them in a major life activity". You may be thinking, "That's not really all that helpful", and we would agree.  We think the courts wrote it that way for a reason. Each case is decided on its own merits - sometimes migraines may be a disability, sometimes they will not. Sometimes a hearing impairment will be a disability, and sometimes it won't.

The key is, essentially, a comparison of how your medical condition limits your daily lifestyle as compared to the average person in the population.

What is a Reasonable Accommodation?

If a Federal employee is found to be a qualified individual with a disability, his/her Agency is required to enter an "interactive process" to discuss a reasonable accommodation. In other words, the Agency is supposed to sit down with the federal employee and help to find a way to remove the barrier that prevents him or her from performing their work. This can include adjustments to the federal employee's work environment, to the federal employee's work itself, and/or to the federal employee's work schedule. As long as the accommodation is reasonable, the Agency is required to provide it.

If, however, the Agency feels that the accommodation creates an undue hardship on them, or the Agency feels like they have to alter the essential functions of the federal employee's job, they are likely to resist accommodation. Just because the Agency resists accommodation doesn't mean they are right. However, there are far more arguments supporting a denial of a reasonable accommodation than there are arguments that require a reasonable accommodation. Once again, unfortunately, the federal employee has the uphill fight. Be sure to contact a lawyer familiar with the EEOC process for federal employees if you feel that you are entitled to a reasonable accommodation for a disabling medical condition.

Do I have to be disabled to be the victim of disability discrimination?

In a word, no. If you are not disabled, but your employer treats you like you are, then you may be protected by the ADA and Rehab Act because you are "regarded as" disabled. In some cases, you may be protected under the ADA just because you are closely associated with disabled individuals. This happens most often in cases where a federal employee has cancer or HIV/AIDS. These are not always disabling conditions, but if the Agency treats a Federal employee as if (s)he is disabled because (s)he has cancer, or because a federal employee's best friend at work has HIV and the boss assumes the employee does  too, then the federal employee may have "perceived disability" status.

This is an interesting twist in the law; the ADA was designed not only to remove barriers from the workplace in favor of disabled individuals, but also to remove or limit the "stigma" associated with certain disabling and non-disabling medical conditions.

Tell me about "class complaints".

What is the process for filing an EEO Complaint?

How long do I have to file?

Generally speaking, a federal employee has 45 days from the date of a discrete action (e.g., suspension, reassignment, or non-selection) to contact an EEO Counselor and initiate the complaint process. In cases of hostile work environment discrimination, a federal employee will typically have 45 days from the time she should reasonably have suspected a particular employment practice or pattern was discriminatory.

After the Counselor issues a federal employee the "Notice of Right to File", she will have only 15 days to make a formal complaint of discrimination. Don't miss this deadline - it's hard to overcome a timeliness challenge to an otherwise valid discrimination complaint.

Where do I file a complaint?

What happens after I file?

After the Federal employee files their formal complaint of discrimination, his case will be handed off to an investigator. Some Agencies, like Department of the Treasury (Treasury Complaint Center) and Department of Veteran's Affairs (Office of Resolution Management), have entire units within their Agency with the sole purpose of investigating complaints of discrimination. Other Agencies will forward the complaint to a third-party investigator that works under a contract with the Agency. In any event, they will collect evidence, including affidavits and other documents and assemble an Investigative File. After the Investigative File has been assembled, the Federal Employee will have 15 days to request a Final Agency Decision (FAD) or to request a hearing with an EEOC Administrative Judge.

Who can represent me?

A federal employee may select any representative to represent him.  This includes attorneys, union stewards, co-workers, friends, peers, etc. Most agencies have rules prohibiting managers or supervisors above your level from representing you.

Keep in mind, however, that you often get what you pay for. Moreover, you cannot recover the costs for your defense if you hire someone other than an attorney.

How much does an EEOC Attorney cost?

The Attig Law Firm, PLLC, charges two fees. First, we charge a small consultation fee to evaluate your case and determine if you and the Firm have a mutual interest in an attorney-client relationship.

If we do decide to work together, the Firm charges a “true retainer” – a one-time fee that reserves the Firm’s time to work on your case and covers the Firm’s overhead and costs for the time we will work together. In some cases, the Attig Law Firm, PLLC, may be able to recover its actual fees and costs from your Agency.

The Firm strives to be consistent and affordable in its pricing; in order to do so, the Firm accepts only a limited number of Federal Employee EEOC cases each year.The Firm must receive the full fee within 7 days of the date we sign an attorney-client agreement. For your convenience, the Firm accepts checks, money orders, cashier checks, and all major credit cards (Mastercard, Visa, American Express, and Discover).

Can I recover my attorney fees if I win?

Maybe. In some situations, a Federal Employee may be able to recover the attorney fees, costs and expenses he incurred. Depending on the remedy received in your discrimination claim, and in what forum the Federal Employee achieved that result, the Civil Service Reform Act, the Backpay Act and/or the Equal Access to Justice Act (EAJA) may permit you to recover those attorney fees, costs and expenses you have incurred.

Who decides the cases?

Administrative Judges hear complaints of discrimination involving Federal employees. If the decision of an Administrative Judge is appealed, than the Appeal is heard by the Office of Federal Operations (OFO) in Washington, D.C. The appeal is a paper appeal.

Can I file suit in Federal District Court?

Is mediation available?

What happens if I lose at my hearing?

What remedies are available if I win at my hearing?

OWCP has denied my claim. Can I appeal to the EEOC?

No. A federal employee has no right to appeal to the EEOC regarding the outcome of any OWCP claim. However, there may be a possibility that a federal employee's on-the-job injury has progressed to the level of a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. For this reason, if you have an OWCP claim, you should ask your attorney if they are able or willing to help you in exercising your right to a reasonable accommodation.   Contact an attorney familiar with Federal Worker’s Compensation law and EEOC procedures if you would like to discuss your disability discrimination or reasonable accommodation claim.