For federal employees who want to file an EEO complaint based on instances of unlawful discrimination, understanding the EEO complaint process can be quite challenging. It can also be more difficult than normal to inform EEO counselors of discriminatory situations and monitor the status of an open EEO complaint because many agency EEO counselors are still working remotely as a result of the COVID-19 pandemic.
While each case is unique and many agencies handle EEO complaints differently, there are common elements and timelines in the EEO process that remain fairly consistent across the board. This article will serve to outline and give an overview of the steps in the EEO process that come before asking for a hearing before an EEOC administrative judge.
Is the EEO Complaint Process the Right Avenue for Recourse?
“Was I discriminated against because of a protected category?” should be one of the first questions any federal employee should ask themselves before considering initiating an EEO complaint. The validity and potential success of an EEO complaint are solely reliant on whether the discrimination was based on a protected category. For the purposes of an EEO complaint, the protected categories include age, color, disability, national origin, race, religion, sex, and/or prior EEO activity.
It’s common to use the terms “retaliation” and “reprisal” to describe the last category on the list. To have a retaliation or reprisal basis, one had to have engaged in prior EEO activity, which includes a previous EEO complaint or oppositional activity (i.e., opposing discrimination to management). The activity could include participation in another employee’s EEO complaint or opposing discrimination against another.
Additionally, an employee can complain of a hostile work environment, which can also be referred to as non-sexual harassment. Harassment becomes unlawful where either enduring the offensive conduct becomes a condition of continued employment, or the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
If your answer to the opening question is “yes,” you may have the grounds to submit an EEO complaint.
Typically, in order to file a complaint, you must make contact with your EEO office within 45 days of the discrimination incident. Likewise, for multi-instance issues of discrimination wherein you are alleging harassment/ hostile work environment, you must make contact with your EEO office within 45 days of the most recent case of patterned discrimination.
Usually, for a period of thirty (30) days after filing an EEO complaint with your EEO office, your complaint will be regarded as being in the “informal complaint” stage. This phase of the EEO process is also sometimes referred to as the “pre-complaint” or “counseling” phase. This stage can be extended to 90 days if the employee wants to pursue Alternative Dispute Resolution with the agency.
It is usually a good idea to compile a list of your discrimination/EEO incidents and submit it to your counselor for processing, particularly if your complaint contains many incidents over a prolonged period of time. This summary should be brief, containing only the dates of each incident, a succinct explanation of what transpired, and the parties accountable. It is important to list the management individuals involved, including their positions.
Once the informal complaint process is complete, your EEO counselor should give you a notice of your right to file a formal EEO complaint and instructions on how to submit your “formal complaint” of discrimination. An employee has fifteen (15) days after the receipt of the notice to file a formal complaint. Failure to file a formal complaint within this timeframe may lead to dismissal of your complaint.
After you file your formal complaint, the agency will have to issue a decision on whether the complaint is accepted for investigation. Additionally, the EEO counselor will send you the “Counselor’s Report,” which details what happened during the informal complaint stage. Statutorily, the agency has 180 days from the filing of your formal complaint to investigate and produce what is called the “Report of Investigation.” You will get a Report of Investigation (ROI) and notice of your right to ask for a hearing before an EEOC administrative judge at the conclusion of the investigation stage.
Generally, an investigator will get in touch with you during the investigation phase of the EEO process to obtain your testimony regarding the claims made in your EEO complaint. This investigator should be a different person than the EEO counselor. Additionally, the investigator will interview any other witnesses they believe are pertinent to your EEO complaint as well as the discriminating official(s) in question. You have the right to ask the investigator to talk with witnesses who would corroborate your account. The best witnesses to call are individuals who either have first-hand knowledge of the crucial details of your case or who can attest to discrimination committed by the specified official(s) in your case.
The investigator is not required to interview your requested witnesses, but if the investigator determines that they are pertinent based on the details you provide, the investigator may do so, and their testimony will be recorded in your Report of Investigation. Additionally, after the investigator obtains testimony from the discriminating official(s), the investigator may give you access to that testimony and give you the chance to offer a rebuttal statement, in which you are free to criticize the mistruths and/or exaggerations in the testimony of the discriminating official. The Report of Investigation should include all statements made, documents produced, and filings pertaining to your complaint.
If any new incidents occur that you would like to include in your EEO complaint along the route, you must contact your EEO counselor within forty-five (45) calendar days of the incidents occurring to amend your complaint. The EEO counselor can then choose to launch a new EEO complaint regarding the new/additional occurrences, or they can add those incidents to your existing EEO complaint. If the claims are similar to or related to those in your original complaint, they should be included in your existing complaint, or you can request to consolidate the complaints later in the process.
By adding events to an EEO complaint, the agency is able to lengthen the time it has to finish your case’s Report of Investigation. It will be extended to 180 days from the date of amendment, but no more than 360 days from the filing of your initial formal complaint. As a result, it may take longer for you to reach the stage of the EEO procedure where you can ask for a hearing before an administrative judge.
You will be given two (2) options after the investigation is over: either seek a hearing before an EEOC administrative judge or ask the agency to decide if discrimination actually happened and issue what is called a “Final Agency Decision.” You can appeal the Final Agency Decision (FAD) to the EEOC or challenge it in federal district court if the agency issues a determination after investigating your request for one and no discrimination is identified.
Within thirty (30) days of when you get notification from the agency about your hearing rights, you must submit a written request for a hearing. As soon as the agency is done with its investigation, it will send you this notice. You may also request a hearing at any time if more than 180 days have passed since you submitted your complaint and the agency has not yet completed its investigation.
Complainants also now have the ability to file their hearing requests online through the EEOC Public Portal.
Navigating the EEO Complaint Process
Regardless of whether you are considering filing an EEO complaint or have already filed a complaint and are currently navigating the process, it is important that you are aware of the steps and timeframes in place so that you can make sure your case remains valid and comes to a proper resolution, either through agency determination or via a hearing.
If you or someone you know is currently considering filing an EEO complaint and would like to discuss their situation, our firm handles all aspects of EEO/EEOC complaints and can assist you with forming your case and managing the multiple strict deadlines in these cases.