Equal Employment Opportunity Complaints (EEOC)

EQUAL EMPLOYMENT OPPORTUNITY COMPLAINTS

Equal Employment Opportunity Complaints


The Federal Equal Employment Opportunity (EEO) process is governed by the regulations, management directives, guidance, and case law of the Equal Employment Opportunity Commission (EEOC), as well as federal court case law.  The statutes enforced by the EEOC make it illegal to discriminate against employees or applicants for employment on the basis of race, color, religion, sex, national origin, or age.


Discrimination is illegal with respect to:

  • Hiring and firing
  • Compensation, assignment, or classification of employees
  • Discipline
  • Transfer, promotion, layoff or recall
  • Job advertisements
  • Recruitment
  • Testing
  • Use of facilities
  • Training and apprenticeship programs
  • Fringe benefits
  • Pay, retirement plans, and disability leave
  • Other terms and conditions of employment


The EEOC also prohibits:

  • Harassment on the basis of race, color, religion, sex, national origin, disability or age
  • Retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices
  • Employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities
  • Denying employment opportunties to a person because of marriage to, or association with, and individual of a particular race, religion, national origin, or an individual with a disability
  • Discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group


What are the Remedies Available?

In order to resolve an EEO complaint, below are some of the available remedies:

  • Posting a notice to all employees advising them of their rights under the laws EEOC enforces and their right to be free from retaliation
  • Corrective or preventive actions taken to cure or correct the source of the identified discrimination or harassment
  • Nondiscriminatory placement in the position the victim would have occupied if the discrimination had not occurred
  • Compensatory damages
  • Back pay (with interest if applicable) and lost benefits
  • Stopping the specific discriminatory practices involved                             


Starting the EEO Complaint Process

Filing an Informal Complaint

If you believe that you have been the victim of discrimination or harassment in your work you must initiate contact with an EEO counselor within 45 days of the alleged discrimination.  This time limit shall be extended where you can show that you were not notified of the time limits and was not otherwise aware of them; you not and reasonably should not have known that the discriminatory matter occurred; or despite due diligence you were prevented by circumstances beyond your control from contacting the counselor within the time limits.


EEO Counseling

The Counselor will provide information to you concerning how the federal sector EEO process works, including time frames and appeal procedures, and attempt to informally resolve the matter. At the initial counseling session, counselors must advise individuals in writing of their rights and responsibilities in the EEO process, including the right to request a hearing before an EEOC administrative judge or an immediate final decision from the agency following its investigation of the complaint. Individuals must be informed of their right to elect between pursuing the matter in the EEO process under  or the Merit Systems Protection Board appeal process. The Counselor must also inform the individuals of their right to proceed directly to court in a lawsuit under the Age Discrimination in Employment Act, of their duty to mitigate damages, and that only claims raised in pre-complaint counseling may be alleged in a subsequent complaint filed with the agency.


Counseling must be completed within 30 days of the date you contacted the agency's EEO office to request counseling. If the matter is not resolved in that time period, the Counselor must inform the individual in writing of the right to file a discrimination complaint. This notice ("Notice of Final Interview") must inform the individual that a complaint must be filed within 15 days of receipt of the notice, identify the agency official with whom the complaint must be filed, and of the individual's duty to inform the agency if he or she is represented.  The 30-day counseling period may be extended for an additional 60 days: (1) where the individual agrees to such extension in writing; or (2) where the aggrieved person chooses to participate in an ADR procedure. If the claim is not resolved before the 90th day, the Notice of Final Interview described above must be issued to the individual.


When a complaint is filed, the EEO counselor must submit a written report to the agency's EEO office concerning the issues discussed and the actions taken during counseling.


Alternate Dispute Resolution (ADR)

Since 2000, all federal agencies have had an ADR program. Such program must be available for both the pre-complaint process and the formal complaint process. At the initial counseling session, counselors must advise individuals that, where an agency agrees to offer ADR in a particular case, the individual may choose between participation in the ADR program and EEO counseling. As noted above, if the matter is not resolved in the ADR process within 90 days of the date the individual contacted the agency's EEO office, a Notice of Final Interview must be issued to the individual giving him or her the right to proceed with a formal complaint.


Filing a Formal Complaint

A formal complaint must be filed with the agency that allegedly discriminated against the complainant within 15 days of receipt of the Notice of Final Interview. The formal complaint must be a signed statement from the complainant or the complainant's representative, containing the complainant's (or representative's) telephone number and address, and must be sufficiently precise to identify the complainant and the agency, and describe generally the action or practice which forms the basis of the complaint.


A complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint. After requesting a hearing, a complainant may file a motion with the AJ to amend a complaint to include issues or claims like or related to those raised in the complaint.


The agency must acknowledge receipt of the complaint in writing and inform the complainant of the date on which the complaint was filed, of the address of the EEOC office where a request for a hearing should be sent, that the complainant has the right to appeal the agency's final action or dismissal of a complaint, and that the agency must investigate the complaint within 180 days of the filing date. The agency's acknowledgment must also advise the complainant that when a complaint has been amended, the agency must complete the investigation within the earlier of: (1) 180 days after the last amendment to the complaint; or (2) 360 days after the filing of the original complaint. A complainant may request a hearing from an EEOC AJ on the consolidated complaints any time after 180 days from the date of the first filed complaint.


Dismissal of Formal Complaints

Prior to a request for a hearing, in lieu of accepting a complaint for investigation an agency may dismiss an entire complaint for any of the following reasons: (1) failure to state a claim, or stating the same claim that is pending or has been decided by the agency or the EEOC; (2) failure to comply with the time limits; (3) filing a complaint on a matter that has not been brought to the attention of an EEO counselor and which is not like or related to the matters counseled; (4) filing a complaint which is the basis of a pending civil action, or which was the basis of a civil action already decided by a court; (5) where the complainant has already elected to pursue the matter through either the negotiated grievance procedure or in an appeal to the Merit Systems Protection Board; (6) where the matter is moot or merely alleges a proposal to take a personnel action; (7) where the complainant cannot be located; (8) where the complainant fails to respond to a request to provide relevant information; (9) where the complaint alleges dissatisfaction with the processing of a previously filed complaint; (10) where the complaint is part of a clear pattern of misuse of the EEO process for a purpose other than the prevention and elimination of employment discrimination.


If an agency believes that some, but not all, of the claims in a complaint should be dismissed for the above reasons, it must notify the complainant in writing of the rationale for this determination, identify the allegations which will not be investigated, and place a copy of this notice in the investigative file. This determination shall be reviewable by an EEOC AJ if a hearing is requested on the remainder of the complaint, but is not appealable until final action is taken by the agency on the remainder of the complaint.


EEO Investigations

Investigations are conducted by the Agency. The agency must develop an impartial and appropriate factual record upon which to make findings on the claims raised by the complaint. An appropriate factual record is defined in the regulations as one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.


The investigation must be completed within 180 days from the filing of the complaint. A copy of the investigative file must be provided to the complainant, along with a notification that, within 30 days of receipt of the file, the complainant has the right to request a hearing and a decision from an EEOC AJ or may request an immediate final decision from the agency.


An agency may make an offer of resolution to a complainant who is represented by a representative at any time after the filing of a complaint, but not later than the date an AJ is appointed to conduct a hearing. An agency may make an offer of resolution to a complaint, represented by a representative or not, after the parties have received notice than an administrative judge has been appointed to conduct a hearing, but not later than 30 days prior to a hearing. Such offer of resolution must be in writing and include a notice explaining the possible consequences of failing to accept the offer.


EEOC Hearings

Requests for hearing must be sent by the complainant to the EEOC office indicated in the agency's acknowledgment letter, with a copy to the agency's EEO office. Within 15 days of receipt of the request for a hearing, the agency must provide a copy of the complaint file to EEOC. The EEOC will then appoint an AJ to conduct a hearing. An EEOC AJ may dismiss a complaint for any of the reasons set out above under Dismissals.


Prior to the hearing, the parties may conduct discovery. The purpose of discovery is to enable a party to obtain relevant information for preparation of the party's case. Each party initially bears their own costs for discovery, unless the AJ requires the agency to bear the costs for the complainant to obtain depositions or any other discovery because the agency has failed to complete its investigation in a timely manner or has failed to adequately investigate the allegations. For a more detailed description of discovery procedures, see EEOC Management Directive 110, Chapter 6.


Agencies provide for the attendance of all employees approved as witnesses by the AJ. Hearings are considered part of the investigative process, and are closed to the public. The AJ conducts the hearing and receives relevant information or documents as evidence. The hearing is recorded and the agency is responsible for paying for the transcripts of the hearing. Rules of evidence are not strictly applied to the proceedings. If the AJ determines that some or all facts are not in genuine dispute, he or she may limit the scope of the hearing or issue a decision without a hearing.


The AJ must conduct the hearing and issue a decision on the complaint within 180 days of receipt by the AJ of the complaint file from the agency. The AJ will send copies of the hearing record, the transcript and the decision to the parties. If an agency does not issue a final order within 40 days of receipt of the AJ's decision, then the decision becomes the final action by the agency in the matter.


Final Agency Decisions

When an AJ has issued a decision (either a dismissal, a summary judgment decision or a decision following a hearing), the agency must take final action on the complaint by issuing a final order within 40 days of receipt of the hearing file and the AJ's decision. The final order must notify the complainant whether or not the agency will fully implement the decision of the AJ, and shall contain notice of the complainant's right to appeal to EEOC or to file a civil action. If the final order does not fully implement the decision of the AJ, the agency must simultaneously file an appeal with EEOC and attach a copy of the appeal to the final order.


When an AJ has not issued a decision (i.e., when an agency dismisses an entire complaint under 1614.107, receives a request for an immediate final decision, or does not receive a reply to the notice providing the complainant the right to either request a hearing or an immediate final decision), the agency must take final action by issuing a final decision. The agency's final decision will consist of findings by the agency on the merits of each issue in the complaint. Where the agency has not processed certain allegations in the complaint for procedural reasons set out in 29 C.F.R. Section 1614.107, it must provide the rationale for its decision not to process the allegations. The agency's decision must be issued within 60 days of receiving notification that the complainant has requested an immediate final decision. The agency's decision must contain notice of the complainant's right to appeal to the EEOC, or to file a civil action in federal court.


Appeals to the EEOC

Several types of appeals may be brought to the EEOC. A complainant may appeal an agency's final action or dismissal of a complaint within 30 days of receipt.


A grievant may appeal the final decision of the agency, arbitrator or the FLRA on a grievance when an issue of employment discrimination was raised in the grievance procedure.


If the agency's final action and order do not fully implement the AJ's decision, the agency must appeal to the EEOC.


A complainant may appeal to the EEOC for a determination as to whether the agency has complied with the terms of a settlement agreement or decision.


If the complaint is a class action, the class agent or the agency may appeal an AJ's decision accepting or dismissing all or part of the class complaint. A class agent may appeal a final decision on a class complaint. A class member may appeal a final decision on an individual claim for relief pursuant to a finding of class-wide discrimination. Finally, both the class agent or the agency may appeal from an AJ decision on the adequacy of a proposed settlement of a class action.


Appeals must be filed with EEOC's Office of Federal Operations (OFO). Any statement or brief on behalf of a complainant in support of an appeal must be submitted to OFO within 30 days of filing the notice of appeal. Any statement or brief on behalf of the agency in support of its appeal must be filed within 20 days of filing the notice of appeal. An agency must submit the complaint file to OFO within 30 days of initial notification that the complainant has filed an appeal or within 30 days of submission of an appeal by the agency. Any statement or brief in opposition to an appeal must be submitted to OFO and served on the opposing party within 30 days of receipt of the statement or brief supporting the appeal, or, if no statement or brief supporting the appeal has been filed, within 60 days of receipt of the appeal.


EEOC has the authority to draw adverse inferences against a party failing to comply with its appeal procedures or requests for information.


The decision on an appeal from an agency's final action is based on a de novo review, except that the review of the factual findings in a decision by an AJ is based on a substantial evidence standard of review.


A party may request that EEOC reconsider its decision within 30 days of receipt of the Commission's decision. Such requests are not a second appeal, and will be granted only when the previous EEOC decision involved a clearly erroneous interpretation of material fact or law; or when the decision will have a substantial impact on the policies, practices or operations of the agency.


The EEOC's decision will be based on a preponderance of the evidence. The decision will also inform the complainant of his or her right to file a civil action.









CAPALDO COLANGELO


Specializing in Federal Employment Law Consulting, Non-Attorney Representation, and Workplace Investigations.


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