Legal Insider: The EEO complaint process for federal employees

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

We represent federal employees in the Equal Employment Opportunity (EEO) complaint process before their federal agencies.

This article briefly describes how the EEO complaint process works for federal employees. Keep in mind that each federal agency is different but essentially follows the same rules. These rules can be found at the EEOC website in MD-110. It is important to get legal advice before filing an EEO complaint.

Reasons for EEO Complaints

Complaints of discrimination may be filed by federal employees or applicants for employment with a federal agency when they believe that they have been discriminated against in the workplace because of:

• race
• color
• religion (including reasonable accommodation of religious beliefs or practices)
• national origin (ancestry, ethnicity, accent, and/or use of a language other than English)
• physical/mental disability (including reasonable accommodation requests)
• sex (including pregnancy, childbirth, lactation, abortion, and related medical conditions)
• sexual orientation, gender identity, gender expression
• age (40 and above)
• parental status
• retaliation for prior protected EEO activity (one of the most common complaints)
• genetic information

Pre-complaint EEO Process

A federal employee seeking to file an EEO complaint must first contact an EEO counselor within 45 calendar days of the alleged discrimination or within 45 calendar days of the effective date of action.

EEO Counseling Process

When contacted by a federal employee, the assigned EEO Counselor will explain the EEO complaint process and provide a federal employee their rights and responsibilities. The federal employee may choose, at the time of initial contact, to attempt to settle the complaint through the alternative dispute resolution (ADR) process.

Formal Complaint Process

If the EEO complaint is not resolved through ADR or at the counseling stage, a federal employee may file a written formal complaint within 15 calendar days of receiving a document referred to as the Notice of the Right to file a Discrimination Complaint.

Acceptance or Dismissal

If a complaint is accepted by the agency (the majority of timely complaints are accepted for investigation) an investigator will be assigned by the federal agency to conduct an impartial investigation of the alleged discrimination claims. An investigator is able to administer oaths to obtain testimony from relevant witnesses and relevant documents.

Investigations and Report of Investigation

An EEO investigator will compile a Report of Investigation (ROI) containing relevant testimony and documentary evidence about the claims of discrimination but does not make any findings in a case. Typically, a federal agency is required to complete an investigation within 180 calendar days of receipt of the formal complaint, with possible extensions available.

Within 30 calendar days of receipt of the ROI, a federal employee can choose to (1) request a hearing by an EEOC judge (typically recommended); or (2) an agency decision on the complaint (usually not recommended). Other options exist based on the timing of the investigation.

Final Agency Decision

If a federal employee requests a final agency decision (FAD), the agency will issue a decision based on the information in the ROI. This process is not usually recommended because federal agencies rarely find themselves guilty of discrimination. If a federal employee is not satisfied with the FAD, they can appeal further to the EEOC or go to federal court.

EEOC Hearing

The EEOC hearing process is typically the best process for federal employees and usually must be requested within 30 calendar days of receipt of the ROI. The EEOC hearing process is similar to a civil trial and can include document requests and depositions. Legal representation is critical for the hearing process. After a hearing, the judge will issue a decision, either finding for the federal employee or agency. Such decisions can also be appealed.

Contact Us

If you are a federal employee and in need of legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation.