|EEOC Complaints - Frequently Asked Questions (FAQ)|
These are some of the questions that are most commonly asked in our initial consultations. Hopefully, they are helpful to you in understanding the EEOC process for Federal Employees and the process of working with an EEOC Attorney for Federal Employees.
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.
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.
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".
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.
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%
A "prima facie" case of discrimination is the first step in what is known as the McDonnell-Douglas burden-shifting analysis. "Prima facie" generally means "at first look" or "at first appearance". Generally, the "prima facie" case is the same for most legal claims of discrimination. First, you must show that you are a member of the protected group (race, age, sex, etc.). Second, you must show that you suffered an "adverse action". Third, you must show some surface nexus between the first two elements.
Most claims fail at this stage, either because the Complainant could not show the basic nexus required, or, more typically, because there was no adverse action. An adverse action is something that, essentially, affects the terms or conditions of employment.
Once the employee shows a “prima facie” case of discrimination, there is a presumption of discrimination. This does not mean you have won, only that the court will presume discrimination unless the Agency articulates a “legitimate non-discriminatory reason” for their action against you. Generally speaking, a “legitimate non-discriminatory reason” is any reason for the action, so long as it is not the wrong reason. The Agency has to provide you, the employee, with enough information and explanation of their “legitimate non-discriminatory reason” so that you have an opportunity to explore the legitimacy of their reason to determine if it is pretextual.
After the Agency or employer has articulated a “legitimate non-discriminatory reason” for their action, the employee has an opportunity to show that the “legitimate non-discriminatory reason” is a pretext for discrimination. Most Federal Employee cases that go to hearing before an EEOC Administrative Judge come down to this question – is the Agency’s “legitimate non-discriminatory reason” a credible explanation or does it appear to be a pretext – or smokescreen – for discrimination.
The law considers a hostile work environment to be an environment that is permeated by speech or conduct that is “severe” or “pervasive” enough to create an environment that both the employee and an objectively reasonable person find to be hostile or abusive. To be a legally actionable hostile work environment, the conduct or speech must be based on race, religion, sex, national origin, age, or disability. This is where most Federal Employees go wrong – the anti-discrimination statutes do not create a general civility code or any guarantee that your bosses and managers will be decent, civil, polite, respectful or professional. They can be jerks or bullies, under the anti-discrimination laws, so long as the reason that they are jerks or bullies isn’t because of your race, religion, sex, national origin, age, or disability. If they are non-discriminatory jerks or bullies, then often times the best recourse is through your employee’s union under contractual terms in the collective bargaining agreement.
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.
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.
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.
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.
This is the general process Federal Employees follow in filing their administrative complaints of discrimination. This process does not apply to private sector employees, and may not apply to state, county, city, or local government employees. First, the Federal employee has to contact an EEO Counselor at their Agency and file an informal request for EEO Counseling. If that does not put an end to the discriminatory act/conduct, then the Federal Employee will have the right to file a Formal Complaint of Discrimination. That is usually followed by either an Agency’s Final Agency Decision (FAD), or an EEO Investigation. After the conclusion of the Formal Complaint and Investigation Process, the employee will have the opportunity to request a FAD or a Hearing before an EEOC Administrative Judge. At certain points in the above-process, the employee has opportunities to bring his or her claim to Federal District Court, as long as certain events occur and certain amounts of time pass. The timelines in Federal Employee Complaints are very complicated and can often be case-specific. You should contact an attorney that has experience in representing Federal employees and Postal workers in their claims of discrimination against the Federal government.
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.
Most Federal Agencies have their own internal EEO Offices where you can file your Informal Request. The name of these groups can give you an insight into how a particular Agency manages complaints of discrimination.
For example, the VA calls their internal EEO workgroup the “Office of Resolution Management” – read the VA’s choice of words in the title very carefully as it tells you an awful lot about the VA’s approach to EEO Complaints. They manage the resolution, not the actual discrimination or complaints of discrimination, meaning you are in for a long fight when you file a request for counseling against the VA. Indeed, the VA’s reputation in the community of Federal Employee practitioners is that the VA doesn’t really don’t care about resolving discrimination, and prefers instead to have bureaucrat attorneys fight for years and spend tens of thousands of dollars defending complaints of discrimination that could have been resolved much earlier, much cheaper, and much more effectively for the employee and the organization earlier in the process.
Another example is the Department of Treasury, which calls their workgroup the Treasury Complaint Center (and even have Megacenters). This title suggests an “assembly line” approach to Complaints. Indeed, Treasury usually responds quickly, consistently and uniformly to all EEO counseling requests and formal complaints of discrimination. This is not to say that they are any better in resolving or addressing discrimination than the VA, but at least they are communicative and informative throughout the process (most of the time, anyway).
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.
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.
The Attig Law Firm strives to make high quality legal representation accessible to all Federal Employees. For that reason, we have a variety of alternate methods for determining a fair and reasonable attorney fee. A fair and reasonable attorney fee is one that not only gives you the ability to retain and pay for an attorney, but also that allows my Firm to stay profitable so that it can continue to represent other Federal Employees.
You can read about the different attorneys fee structures charged by the Attig Law Firm by visiting our article on our Blog.
Keep in mind that you get what you pay for. I have seen Firms take your case after talking to you for 20 minutes, charge high hourly rates, and then try to settle your case for the cheapest outcome possible. What is more important than the fee the Firm charges is feeling that you trust your attorney and feel that you are getting what you pay for from your attorney.
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.
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. EEOC Judges are overworked – many of them have dockets exceeding 50+ cases. Many EEOC offices are referring cases out to other districts due to unreasonable caseloads. As a result, your case may take a long time to get to hearing, or even to get an AJ to issue an Acknowledgment Order so you can initiate discovery. While the great majority of EEOC Judges are civil, professional, and pleasant to work with, we have been seeing (with increasing and somewhat alarming frequency) judges that are rude to litigants and attorneys, EEOC Administrative Judges that are short-tempered and uncivil, and Judges that try to push a case off their docket using any means possible. For example, we know of a case where an EEOC Administrative Judge took no action on a case for over a year (despite letters and motions requesting that action be taken) and then rebuked the attorney and employee for not-prosecuting the claim.
Yes, but first you must “exhaust your administrative remedies”. You should contact an attorney that has experience in representing Federal employees and Postal workers in their claims of discrimination against the Federal government [link to contact page] to determine whether or not you have exhausted your administrative remedies.
Generally speaking, informal mediation is possible at any stage of the complaint process: informal, formal, or hearing. Our Firm does strive to mediate every case at least once before an EEOC Administrative Hearing. We have used private mediators, Federal mediators, Settlement Judges, and have frequently asked that Chief Administrative Judges of the EEOC assist the parties in mediation.
If you do not prevail after an EEOC Adminstrative Hearing, the Agency will be directed to prepare a Final Agency Decision, or FAD. Upon receipt of the FAD, you will have an opportunity to appeal the FAD to the Office of Federal Operations (OFO) in Washington, D.C. We jokingly refer to OFO as the Slow-FO, as hearing back on your appeal can take anywhere from 6 months to 48 months. We have, for example, only recently received an OFO decision on an appeal filed over 18 months ago.
The EEOC Administrative Judge has broad remedial power. The goal of the EEOC’s remedial authority is not only to restore you to the status quo before the discrimination, but also to prevent the occurrence of discrimination in the future.
The EEOC’s remedial authority includes equitable or declaratory relief (for example, postings of discrimination, reinstatements to positions, re-running selection processes, transfers to other positions, etc.), monetary relief (actual monetary loss, non-pecuniary losses such as emotional distress, loss of earning power, loss of consortium, loss of enjoyment of life, etc), and attorneys fees and costs.
The EEOC’s ability to award compensatory (monetary) damages is capped. There is no cap on your actual out-of-pocket losses. However, damages for non-pecuniary compensatory damages (emotional distress, loss of earning power, loss of consortium, loss of enjoyment of life, etc) is capped at $300,000. If he or she finds discrimination, the EEOC AJ determines the amount of non-pecuniary compensatory damages by considering the nature, severity and duration of the harm you suffered, and compares his or her finding with other awards in similar cases.
No. A federal employee has no right to appeal to the EEOC regarding the outcome of any OWCP claim.