For federal employees looking to file EEO complaints based on incidents of unlawful discrimination, understanding the EEO complaint process can be extremely difficult. With many Agency EEO Counselors still working remotely due to the COVID-19 pandemic, it can also feel even harder than usual to communicate discriminatory incidents to EEO counselors and check the status of a pending EEO complaint.
This blog post aims to provide a basic layout of the EEO process leading up to the point when you can request a hearing before an EEOC Administrative Judge. While every case is different, and different Agencies may have slightly different ways of handling EEO complaints, there are some general components and timeframes of the EEO process that tend to be relatively uniform.
One of the first questions a federal employee who is considering initiating an EEO complaint might ask themselves is: Do I feel I was discriminated against based on a protected category? Something to keep in mind when going through the EEO complaint process is that EEO complaints are only valid if they involve discrimination based on a protected category. For EEO purposes, a protected category means: race, sex, color, national origin, religion, disability, age, and/or prior EEO activity. The final category in the list (discrimination based on prior EEO activity) is often referred to as “retaliation” or “reprisal.” It is important to keep in mind that for complaints of retaliation, the EEO process only covers complaints of retaliation due to an employee’s prior EEO activity. While prior EEO activity can include either having a prior EEO complaint or having previously voiced concern about discrimination in the work environment, it does not typically include other types of activities. For instance, in general, a complaint that an employee is being retaliated against for disclosing concerns such as safety violations or fraud, waste and abuse may need to be addressed in a different forum other than the EEO complaint process.
If you are a federal employee and you answered “yes” to the initial question of whether you feel you were discriminated against based on a protected category, you should have the right to file an EEO complaint with your servicing EEO office. Generally, in order to timely initiate your EEO complaint, you must have initiated contact with your EEO office to file a complaint within 45 calendar days of each discriminatory incident. For certain types of multi-part, “hostile work environment” EEO complaints involving multiple incidents, in order to timely file your EEO complaint, you generally must have initiated contact with your EEO office to file your complaint within 45 calendar days of the most recent incident in a pattern of continuous, similar discriminatory incidents.
Typically, after initiating an EEO complaint with your EEO office, your complaint will be considered to be in the “informal complaint” stage for a period generally lasting thirty (30) days. This stage is sometimes also referred to as the “pre-complaint” or “counseling” stage of the EEO process.
Especially if your EEO complaint involves multiple incidents over an extended period of time, it is always a good idea to put together an itemized/bullet-pointed list of your EEO issues/incidents and turn that itemized list in to your EEO counselor for processing. The listing of your issues should be succinct, stating only the date of each incident, a brief description of what happened, and who is responsible (for instance, “On June 1, 2021, Supervisor John Doe denied me a performance award even though he gave performance awards to my peers who received the same appraisal score as me but are a different race than me.”).
Once the informal stage ends, your EEO counselor should provide you with paperwork to complete in order to file your “formal complaint” of discrimination. Make sure you pay careful attention to any timeframes required for filing your formal complaint, as failure to file your formal complaint within the required timeframe could lead to dismissal of your EEO complaint.
Once you file your formal complaint, as long as your complaint is accepted (which, generally speaking, simply means that your complaint states a valid claim of discrimination and was timely filed), you will enter the investigation phase of the EEO complaint process. Generally, after you file your formal complaint, the complaint is then investigated for a 180-day period. At the end of the investigation stage, you will be issued a Report of Investigation (ROI), and a notice of your right to file a request for a hearing before an EEOC Administrative Judge.
Typically, during the investigation stage of the EEO process, an investigator will contact you and take testimony from you (normally by means of a written, question-and-answer style Declaration or Affidavit) with regards to the allegations contained in your EEO complaint. The investigator will also take testimony from the discriminating official(s) and any other witnesses the investigator determines are relevant to your EEO complaint. You have the right to request that the investigator speak to certain witnesses who will support your testimony. The most useful witnesses to request are those witnesses who have either first-hand knowledge of the relevant facts of your case, or who have first-hand knowledge of discrimination by the named discriminating official(s) in your case. The investigator is not obligated to collect testimony from your requested witnesses, but if the investigator believes, based on the information you provide, that the witnesses you requested are relevant, the investigator can request testimony from them, and their testimony will be included in your Report of Investigation. Additionally, once the investigator collects testimony from the discriminating official(s), the investigator should provide you with that testimony and allow you the opportunity to provide a “rebuttal statement” wherein you are permitted to point out the untruths and/or false statements in the discriminating official’s testimony. Your rebuttal statement will also be included in the Report of Investigation.
Along the way, if any new or additional incidents occur that you would like to include in your EEO complaint, you should inform your EEO Counselor of those new or additional incidents within 45 calendar days of the incidents occurring. At that point, the EEO counselor can either add those incidents to your EEO complaint (referred to as an “amendment” to your EEO complaint), or start a brand new EEO complaint with regards to the new/additional incidents. Adding incidents to an EEO complaint allows the Agency to extend the period of time in which it is required to complete the Report of Investigation in your case, which can ultimately delay how long it takes to get to the point in the EEO process whereby you are allowed to request a hearing before an Administrative Judge. For this reason, it is not always beneficial to continuously add more incidents to an EEO complaint after you have already filed your formal complaint. However, if you do end up suffering additional incidents of discrimination that you would like to include in your EEO complaint, you must notify your EEO counselor of those additional incidents in order to be able to pursue those incidents through the EEO complaint process.
Once the investigation into your EEO complaint is complete, or at the end of the 180-day investigation period, you finally have the right to request a hearing before an EEOC Administrative Judge. Typically, you will only have thirty (30) calendar days to file your hearing request after receiving your Report of Investigation (ROI). Failure to file your hearing request within the given timeframe could bar you from being able to pursue your EEO complaint at the hearing stage, so, if you are planning to request a hearing before an EEOC Administrative Judge, make sure to do so within the required period of time. After requesting a hearing, an EEOC Administrative Judge will be assigned to your EEO complaint. Because every Administrative Judge and every EEOC Office may handle the cases on their docket in a different way, if you do end up requesting a hearing, make sure to pay close attention to any and all orders and timeframes set by the Administrative Judge throughout the hearing stage of your EEO complaint process.
If you are a federal government employee considering filing an EEO complaint, or if you have already filed an EEO complaint and are currently navigating the EEO process, and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, O’Reilly, & Eddy, P.C. to set up an initial consultation with one of our attorneys.