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What is the process for federal employees experiencing discrimination?

Federal employees, like their private sector counterparts, have legal protections against discrimination. Under the law, it is illegal for federal employers to discriminate against an employee based on their:

• Race

• Religion

• Sex

• Color

• National origin

• Disability

• Genetic information

• Age (if over age 40)

• Status as pregnant

Federal employees who have experienced discrimination during the course of their employment must follow a different course of action to remedy the situation than those in the private sector. Federal employees can benefit from administrative procedures that may be more beneficial than bringing a case to court. However, the time frame for federal employees to file an EEO complaint are much shorter than in the private sector. It is therefore important for all federal employees to have a basic understanding of what the process entails.

Pre-Complaint Counseling

Within 45 days of when the discrimination occurred, EEOC's regulations require federal employees to contact the Equal Employment Opportunity (EEO) counselor at the agency where the employee is employed to initiate the complaint process. The EEO counselor will advise employees of their rights and responsibilities under the law. In general the EEO counselor will give the employee the option of exploring the matter through counseling or seeking settlement through alternative dispute resolution, such as mediation. If the dispute is not settled during this stage, the employee has the right to file a formal complaint within 15 days of receiving instructions on how to do so from the EEO counselor. In most cases, these instructions are given during the "final interview."

Formal complaint

One a formal complaint has been filed, the agency where the employee works will review the complaint and decide whether it should be dismissed for procedural reasons (e.g. filed too late). If the complaint is not dismissed, the agency will investigate the allegations contained within. Under EEOC's Regulations, the agency has 180 days from the filing date to complete its investigation. Once the investigation has concluded, the agency must provide the employee with the Report of Investigation (ROI) and notifies the employee of the right to choose whether to request a hearing before an Equal Employment Opportunity Commission (EEOC) Administartive Judge or ask the agency to issue a ruling as to whether discrimination occurred (also known as a "Final Agency Decision"). The employee only has 30 days to request the EEOC hearing.

Hearings

If the employee asks the agency to issue a ruling, and the agency finds that there was no discrimination (or if the employee otherwise disagrees with the ruling), the employee may appeal the decision to the EEOC's Office of Federal Operations (OFO) or file a lawsuit in federal court for a jury trial to prove discrimination.

In cases where the employee opts to request a hearing before the EEOC, an administrative judge will conduct a hearing, issue a ruling and order relief if discrimination was found. In cases where discrimination was found, the agency will review the judge's ruling and issue a "final order" within 40 days that tells the employee whether it agrees with the decision and whether it will grant the relief ordered by the judge.

Appeals

If the employee disagrees with the agency's final order, the employee may file an appeal with the EEOC's Office of Federal Operations (OFO) within 30 days of receiving the order. The OFO will review the file in its entirety, including the agency's investigation, the EEOC hearing transcript and the decision of the administrative judge. The OFO will then issue a decision. If the employee's agency does not follow the relief given in the OFO's ruling, the employee may file an EEOC petition for enforcement

If the employee disagrees with the OFO's decision, the employee may file a lawsuit in federal court within 90 days of receiving the decision, seeking a jury trial to prove discrimination. The same is true if the OFO does not issue a decision within 180 days after appeal is filed.

Federal lawsuit

In most cases, federal employees must exhaust this administrative process described earlier before they may file a lawsuit in federal court. However there are three exceptions to this rule:

• If 180 days have elapsed since the initial complaint was filed, if the agency has issued no decision and no appeal has been filed;

• If the type of discrimination alleged is age discrimination, provided the employee gives the EEOC 30 days notice of their intent to file a lawsuit; and

• In cases where gender-based pay discrimination is alleged under the Equal Pay Act

Once in federal court, the discrimination claim goes through the federal procedural process all federal cases follow, which ultimately results in a trial or settlement.

Speak with an attorney

Federal employees should not attempt to navigate the complicated administrative process alone, as there are several pitfalls and traps for the unwary. As authors of the Federal Employees Legal Survival Guide, the law firm of Passman & Kaplan is a recognized leader in assisting federal employees who are victims of discrimination. Our attorneys can use their experience to help federal employees secure the most favorable outcome at all stages of the process.

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