We often represent and defend federal employees and supervisors named as respondents in Equal Employment Opportunity (EEO) complaints. While many attorneys represent only complainants in EEO complaints, we also represent those co-workers and supervisors accused of EEO misconduct in their defense. In cases where a federal employee or supervisor has been named a respondent in an EEO case by another federal employee, it is very important for them to also obtain legal advice and counsel throughout the EEO investigation in order to avoid disciplinary action later.
An EEO respondent simply means that the individual has been named as part of the EEO violations or misconduct at issue.
How EEO Complaints Against Supervisors and Co-Workers Arise
EEO complaints in the federal sector arise in any number of ways; there are too many to name all of the examples here. The most common way in which a federal supervisory EEO complaint occurs is when a new supervisor moves to a new agency or new division within a previous agency and attempts to change practices and procedures. The new supervisor may come into a workplace with a number of past practices and rules about how an agency mission should be accomplished and attempt to implement these new policies and practices. In some instances, this can upset the status quo and lead to employees filing a multitude of different EEO complaints.
The next most common basis for an EEO complaint is where a subordinate federal employee has been given a large workload and feels underpaid. Also, a federal supervisor can sometimes expect an EEO complaint if they are in the process of disciplining a federal employee or a low performance rating is imminent.
For co-worker EEO complaints, they usually occur when there is an allegation that the co-worker has engaged in harassment or retaliation against them, in some form, and that their supervisors have not addressed these harms. We have also seen co-worker EEO complaints arise when a co-worker is favored by a supervisor (or appears to be favored) in some aspect of work over the complainant. Sometimes, co-workers receive EEO complaints when they are acting in a lead or temporary supervisor capacity as well.
In either case, an EEO complaint alleges that the federal supervisor or co-worker has violated the Civil Rights Act, which in itself can be the basis of a misconduct charge.
Legal Defense against EEO Complaints
As mentioned above, EEO complaints against federal supervisors or co-workers generally start off in response to a non-EEO issue; for instance, a new supervisor provides a bad performance evaluation to an employee and/or issues a minor (or major) disciplinary action. Typically, it is most often the case that when a federal employee is about to receive an disciplinary action, or has received some sort of performance action that they may file an EEO complaint against their supervisor. They may then request that the supervisor be warned about not engaging in retaliation or request that there be no-contact between the two of them.
This can often lead to confusion and lag time between an investigation and a resolution of the issues. Following the filing of an EEO complaint, the EEO process will then unfold. It is important for a federal supervisor to have their own counsel in responding to these allegations at the earliest stage. Doing so can help from becoming steamrolled in the process.
EEO complaints against federal employee co-workers pose special legal defense challenges given that a supervisor may find it easier to agree with a complainant to avoid subjecting themselves to the EEO process. A federal employee co-worker accused of misconduct can quickly find themselves without any allies in the EEO process. This is why they need counsel to advocate for them in the EEO process.
Responding to an EEO Complaint
It is important for a federal employee or supervisor to be prepared when they are facing allegations related to an EEO complaint. We often find that it is helpful to interview the supervisor or federal employee about what the EEO complaint allegations against them may involve, if they have not been notified of the specific allegations. Generally, a federal supervisor or federal employee can guess as to what type of allegation has been brought by their subordinates; in some rare situations this is not the case. It is helpful to go over the facts, the relationship to the EEO complainant and to see what type of alleged conduct one is looking at. Once the factual allegations have been determined, the next step is to defend against the complaint.
The EEO Investigative Process for Federal Supervisors and Employees Accused
Following the initial EEO complaint, there can be a number of different steps in a dealing with a federal employee’s EEO complaint against them. For instance, the complainant may elect to engage in mediation, should there be an attempt to resolve the issues before the formal EEO investigation. Additionally, if there are no mediation proceedings, then the most typical next step will be for the EEO investigation to proceed.
Depending on whether the federal supervisor or co-worker is the respondent in the EEO complaint (usually this is the case), then the federal supervisor or co-worker will likely have the opportunity to review the subordinate’s EEO claims and will be provided a chance by the EEO investigator to rebut the allegations. The federal supervisor or co-worker may be interviewed and can have counsel represent them during the EEO investigation. The interview is usually mandatory, and the federal supervisor or co-worker is required to be truthful, but it is important to understand that an EEO investigation is different than a misconduct-based investigation.
Typically, EEO investigations vary greatly depending on the investigator assigned to the case. Sometimes they will ask for a brief written response to the allegations, and sometimes they will seek in depth responses during an interview. A misconduct investigation is far more thorough than an EEO investigation. This is a significant variable in these types of investigations. A federal supervisor or co-worker may also be asked to provide documents and undergo a second interview. It is important for these employees to have legal counsel in responding formally to these allegations.
After the EEO Investigation
When the EEO investigation has been concluded, a Report of Investigation (ROI) will be prepared by the EEO investigator and given to the complainant. The federal employee accused of EEO violations, however, will usually not even be informed that the investigation has been concluded. It is often the case that they will continue to wonder what has transpired in the EEO complaint process. This can cause a great deal of stress. In the ROI, the EEO investigator will reiterate what both the EEO complainant and what the supervisor or co-worker has contended during the investigation and attach other related documents. The respondent, unless given to them by the complainant will likely never see the ROI.
In the ROI, there will usually not be any conclusions of fact by the EEO investigator. The ROI itself can consist of hundreds of pages of documentation.
The EEO complainant will then have the option to request an Equal Employment Opportunity Commission (EEOC) hearing or request a Final Agency Decision (FAD). Usually, a complainant requests an EEOC hearing because a FAD is an internal agency decision. At that point, a federal supervisor or co-worker is unlikely to hear more about the case unless they have been subjected to a disciplinary action based on the underlying EEO issues or if they have been called for a deposition or other testimony in the case at the EEOC hearing or in court. There is a chance for legal representation in this process as well if this occurs.
Legal Representation During the EEO Process
It is important for a federal supervisor or co-worker to keep in mind that during the EEO Complaint, mediation, investigation and hearing process that the agency attorney is not their attorney. The agency attorney, at all stages, represents the agency and their interests. This point can sometimes be confusing for some federal supervisors or co-workers because it may seem like the agency attorney is representing them and the agency at the same time, but that is not the case. It is important for a federal supervisor or co-worker, therefore, to have their own attorney if accused of EEO misconduct. Additionally, it is not unusual for an agency attorney to attempt to resolve an EEO complaint to the detriment of the federal supervisor or co-worker that has been accused so it can be important to have your own attorney.
Contact Us
When a federal supervisor or federal employee co-worker is facing accusations of improper EEO misconduct, it is important to obtain legal advice and representation of counsel. Our law firm advises and represents federal employees throughout the country. We can be contacted here or by telephone at (703) 668-0070 for further information.
We are often asked about reasonable accommodations by employees in Virginia when they develop a medical condition that requires a change in
their duties or other adjustments. We advise private, federal, state and county sector employees in Virginia this regard. The reasonable accommodation process applies to both employees and job applicants in all states including the Commonwealth of Virginia.
What is a Reasonable Accommodation?
The usual first question that comes up is what is a reasonable accommodation? A reasonable accommodation is an employee’s request to modify their employment conditions, assignments, hours, etc. in order to allow them to continue working in a position despite a disability. Most employees are covered under the Americans with Disabilities Act (ADA) which covers reasonable accommodations. Federal employees are covered under the Rehabilitation Act which is very similar to the ADA. According to these laws, employers are required to engage in the reasonable accommodation process to qualified employees unless it would create an undue hardship for them. The Equal Employment Opportunity Commission (EEOC) and other civil rights governmental entities enforce reasonable accommodation matters.
In the Commonwealth of Virginia, employees are also covered under the Virginians with Disabilities Act which applies to all employers. Under both the federal and state laws, the goal of the reasonable accommodation process is to enable a qualified employee with a disability the opportunity to enjoy an equal opportunity in employment.
How Does an Individual Request a Reasonable Accommodation?
A request for reasonable accommodation can be formal or informal. Some employers have created specific forms covering reasonable accommodation requests and others simply involve verbal discussions between the employee and their immediate supervisor. The most typical reasonable accommodation involves an employee that has developed a medical condition or disability that requires some modifications or adjustments to their working arrangements. Usually, an employee will ask for a reasonable accommodation by approaching their supervisor or Human Resources department, depending on the employer and asking for one. Once requested, there is usually a discussion about the reasonable accommodation requested.
The Interactive Process
The reasonable accommodation discussion between an employer and employee is often called the “interactive process” which simply means that the employer must engage the employee in attempting to resolve the reasonable accommodation request. The interactive process does not mean that an employer has to grant every accommodation sought, or even the specific one requested. The employer is required to give a reasonable effort at resolving the reasonable accommodation at issue.
Examples of Reasonable Accommodations
The following are some examples of reasonable accommodation requests. There are far too many to list, but the following are examples.
Example A: An employee develops carpal tunnel syndrome and needs a new keyboard because their current keyboard is aggravating their condition. A request for a new keyboard is a request for a reasonable accommodation.
Example B: An employee is undergoing medical treatment in the morning for epilepsy. He informs his supervisor that he needs an adjustment in his starting time so that he can take his medication in the morning before starting work. This is a request for a reasonable accommodation.
Example C: An employee develops a heart condition and needs to take daily breaks at a certain time in order to take their medication. A request to take breaks in order to take medication is a reasonable accommodation.
Example D: An employee develops a disability that causes them to be unable to perform the duties of their position. An employee’s request for reassignment is a request for reasonable accommodation.
There are far too many examples of reasonable accommodations to list here, as they vary based on an employee’s specific medical condition and needs. Additional examples of reasonable accommodations for specific conditions can be found here.
Conclusion
When a Virginia employee is in need of a reasonable accommodation, it is important to obtain legal advice and legal representation. Our law firm stands ready to advise and represent Commonwealth of Virginia employees in the reasonable accommodation process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.
This article is an overview of the Fairfax County Office of Human Rights and Equity Programs, Human Rights Division (HRD) process. The purpose of the HRD is to examine and investigate complaints by employees who have claimed discrimination on the basis of race, color, sex, religion, national origin, marital status, age, familial status or disability involving employment, housing, public accommodations, private education, and credit. Pursuant to the Fairfax County Human Rights Ordinance located in Chapter 11 of the County Code, the HRD evaluates complaints by employees who believe they have been subjected to discrimination and harassment by an employer in Fairfax County.
Filing a Complaint with Fairfax HRD
Generally, an employee must file a complaint with the HRD in person or by telephone within 365 days of the alleged discrimination. Complaints can also generally be filed at the Equal Employment Opportunity Commission (EEOC). The HRD and EEOC often cooperate with each other and in some cases a discrimination complaint will be considered cross-filed with both agencies. Some of the reasons for filing a discrimination complaint include:
Denial of a promotion due to race, color, age, or disability;
Gender-based salary discrimination;
Termination due to pregnancy; or
Termination after contesting an act of discrimination.
Resolving Complaints at HRD through Mediation
The HRD provides alternative dispute resolution (ADR) methods such as mediation, settlement, or conciliation, which allow the employee and employer to avoid future litigation. There can be substantial benefits and cost savings to both an employee and employer in resolving a matter without litigation.
The HRD Investigation Process
The HRD takes a number of steps in order to investigate an employee’s complaint. These steps include the following:
(1) submitting document requests to an employer relating to the alleged discrimination;
conducting witness interviews regarding the alleged discrimination; and
(2)taking site visits to the employer regarding the alleged discrimination.
Following the investigation, HRD will determine whether there is probable cause to find discrimination. A finding of no probable cause can be appealed to the Fairfax County Human Rights Commission. The Commission can reverse the HRD determination, find probable cause, and grant a public hearing. If the Commission does not find probable cause, the employee can utilize the EEOC or court process to advance his or her dispute.
Public Hearing
If a public hearing is granted for an alleged case of discrimination, the case proceeds much like in civil court where information can be sought by the employee and witnesses can be examined. A pre-hearing is conducted to work out evidentiary and witness issues, after which a trial-type hearing is conducted. Following the public hearing, the Commission will determine whether a violation has occurred.
If the Commission finds a violation, it refers the matter to the Fairfax County Board of Supervisors for review and evaluation to determine whether the County Attorney should file a claim against an employer for violating the Fairfax County Ordinances on discrimination. If the claim is dismissed, employees can proceed with the court process.
Conclusion
We represent employees and employers in employment law matters before the Fairfax HRD. If you need assistance with an employment law issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.
