We represent federal, Virginia and Washington, D.C. employees in hostile work environment claims. If you have been mistreated at work, especially in a consistent and/or repetitive manner, you might describe it as a “hostile work environment” based on harassment. But in a legal context, this term has a very specific meaning. Not all difficult or abusive workplace situations are actionable under anti-discrimination laws. If a situation is actionable, you may need to act quickly—especially if you are a federal government employee—in order to preserve your rights and potentially obtain relief. It is therefore particularly important to obtain legal counsel as early as possible in order to determine whether your case meets the relevant criteria to bring legal action. An EEO lawyer can also advise you as to what can be done to pursue the claim based on your type of employment and the facts of the case. Regardless, understanding the type of claim is a good first step.
Basics of a Proper Hostile Work Environment Claim
The federal anti-discrimination laws recognize two basic types of harassment claims, and they are fairly intuitive on a surface level: the harassment is either a pattern of conduct (or other change affecting the work environment in an ongoing way), or it is a discrete action standing by itself, such as a termination. If it is a pattern of abusive treatment, or an ongoing and harmful changed condition of the employment, it can be called a “hostile work environment,” often shortened to HWE. The idea behind HWE is that even if an employee is not directly fired, demoted, or otherwise subjected to a specific adverse action, the “terms and conditions” of their employment can still be changed—either formally, or informally and thus “constructively”—by a sufficiently substantial alteration to the work environment.
Two Key Components of HWE Claims
There are two key components of a proper HWE claim under federal law. The first component is that you must have been subjected to “unwelcome conduct” that was, or is, “severe or pervasive”—enough for the overall work environment to reasonably considered “hostile or abusive.” The second component, which is not obvious to many people and which is the source of much confusion, is that however the “unwelcome conduct” may be manifested, it must also be based on your membership in a legally protected group.
Protected Groups
Protected groups include race, color, or national origin; religion; sex and/or gender, including related statuses such as pregnancy; age; disability; genetic information; or having engaged in prior “protected” Equal Employment Opportunity (EEO) activity such as complaining about discrimination or participating in another’s EEOC complaint adjudication. (Discrimination on the basis of prior protected activity is called retaliation or reprisal). Note that this is at the federal level. States may add their own protected groups under their own anti-discrimination laws, but you can’t use state-specific additions to that list if you pursue your case via the federal EEO complaint process. For example, Virginia law protects against discrimination on the basis of marital status or military veteran status; at the federal level, you might have to make a marital status claim using a sex- or gender-based argument, and you would have to potentially pursue the veteran discrimination claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is a separate statute with a separate complaint and adjudication process. You would have to pursue state-level anti-discrimination processes to use the “extra” protected statuses, and the efficacy of those processes can vary substantially by state.
Nexus Requirement
The second component of tying the HWE to a protected status is critical. Absent this “nexus” component, a claim of harassment or HWE will not survive scrutiny under the federal EEO process. That means that abusive work environments which are not based on any of the protected statuses cannot properly be claimed as a “hostile work environment” under these workplace laws, even if they are based on, e.g., intense personal animus or egregiously targeted and arbitrary adverse action. While such situations could be remediable via other processes, such as the Office of Special Counsel (OSC) if you are a federal employee, or via other state protections, it is important to keep in mind that private companies generally enjoy “at will” employment protections. This means they are allowed to fire or otherwise take adverse action against an employee for any reason or even no reason, as long as it is not a discriminatory reason based on these protected statuses. And for federal agencies, arbitrary or otherwise unsupported personnel action could be appealable to the Merit Systems Protection Board (MSPB) or reported to OSC, but it is not independently an EEO claim.
Subjective Versus Objective HWE
The EEOC necessarily follows Supreme Court precedent regarding these legal issues. In 1993, the Supreme Court laid out a framework for HWE claims, including with the “severe or pervasive” standard. In that same seminal case, Harris v. Forklift Systems, Inc., the Court also imposed a two-pronged standard for deciding when a work environment is sufficiently “hostile:” it must be both subjectively hostile and objectively hostile.
Objective Hostility
Objective hostility uses the classic legal hypothetical of “reasonableness:” would a “reasonable person” find the work environment objectively hostile or abusive? If not, the claim may not be actionable regardless of what the employee subjectively believes. Because this determination is not made by a complainant themselves, it is worth considering whether a neutral decisionmaker (i.e., a judge or jury) is likely to find that an average, rational person in the employee’s position would find the work environment hostile and/or abusive.
Subjective Hostility
Subjective hostility means that the employee must subjectively believe and perceive the workplace to be hostile and abusive before a HWE claim is valid. This may seem silly—why would somebody claim HWE if they don’t personally consider it hostile or abusive?—but that is the point here: you cannot claim HWE if you don’t personally find the environment to be hostile or abusive, even if a reasonable person would and the only reason you don’t is because you don’t mind it. In other words, you cannot receive a windfall just from being willing to put up with something that a hypothetical “reasonable” employee would find to be objectively hostile.
Together, this means that an unreasonably sensitive person cannot claim HWE over a situation where a reasonable person would not mind, and likewise, an especially stoic person cannot claim HWE without actually perceiving the hostility or abuse as harmful to themselves or their employment. Both subjective and objective hostility must be present.
Further Considerations
Alongside satisfying the “severe or pervasive” standard, demonstrating both subjective and objective hostility, and showing how the problematic actions were based on or motivated by one or more protected statuses, HWE cases often involve even more granular analyses. For example, was the conduct “unwelcome?” How should this be argued in a case with a wide range of allegedly discriminatory and harassing conduct? What if a separate incident is also part of a broader pattern? These issues can get complicated very quickly, which is why experienced representation can be an especially beneficial asset in pursuing a HWE claim.
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Although the umbrella concept of “harassment” can include HWE and “regular,” perhaps more isolated harassing conduct by an employer, there are various stages of the EEOC complaint, investigation, and adjudication processes during which presenting the claims properly can be critically important. Even if a mistake can be rectified later in terms of a claim’s phrasing, a complainant misunderstanding and mis-alleging an EEO-related harassment claim can cause problems with how the complaint is processed, investigated, and ultimately adjudicated. As a result, the distinctions between HWE and “other” harassment are helpful to know from the very beginning, and knowledgeable legal counsel can help tailor how your claims are presented in order to achieve the best possible outcome for your case.If you are seeking representation before the EEOC, you can contact us via our website, www.berrylegal.com, or by phone at (703) 668-0070, to arrange for an individual consultation.
Review of Formal Complaint After Submission
After it is submitted, the Agency will begin to review the grounds of the EEO complaint. The Agency will then either accept the claims for investigation or dismiss some or all of them based on procedural grounds. In accepting claims, the Agency will send you an acceptance letter listing the claims to be investigated. In the letter, the Agency will spell out the next steps in the EEO process. The letter will also state that the investigation must be completed within 180 days. It is important to have federal employee EEO legal representation in these cases.
Dismissal of Claims
If the Agency dismisses all or a part of a complaint, the federal employee has options. If the Agency dismisses the EEO complaint, it must issue a final decision. The Agency should clearly set forth the reasons for dismissing the complaint. The Agency will provide the complainant appeal rights to the Equal Employment Opportunity Commission (EEOC) where an appeal can be filed.
Acceptance of Claims and Investigation
If the Agency accepts a claim, it will initiate an investigation into the EEO complaint. An investigator will be appointed. These investigators can be in house federal employees or government contractors. Typically, the appointed investigator will contact you and ask you to provide some responses to questions about your EEO complaint. The investigator may also ask for documents or other supporting materials for your complaint.
What Does the Investigator Do?
Once the investigator is appointed, they are authorized to conduct the EEO investigation for the Agency. Investigators are authorized to administer oaths. In conducting their investigations, investigators use many different methods to conduct the investigation. These include affidavits, interviews, interrogatories or other methods to obtain facts about the EEO complaint.
The investigator will also ask for this type of information from others named in the Complaint or who are witnesses. The Agency will then conduct this investigation into the claim(s) and issue a Report of Investigation. This will be issued approximately 180 days after the formal complaint was filed. Federal Employee EEO investigations can include a variety of methods such as interviews, requests for responses to questions, and/or affidavits. The process varies by Agency and investigator. The investigative process is considered to be non-adversarial and often conducted by a third party contract investigator.
Rebuttals
In some cases, after the Complainant’s statement and responsive statements are taken, the investigator will want a rebuttal statement. This is just a statement responding to the information that was provided by one of the witnesses in the case.
Completion of Investigation Process
Federal agencies are required to complete an investigation within 180 days of the filing of a formal complaint. If the complaint is amended or consolidated with another complaint, the investigation must be completed 180 days after the filing of the last complaint or no later than 360 days after the filing of the original complaint, whichever is earlier.
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Our law firm represents and advises federal employees in EEO complaint investigations. If you need legal assistance regarding an EEO complaint or other employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
This article discusses the Equal Employment Opportunity (EEO) mediation process for federal employees. Our law firm represents federal employees in discrimination, harassment, retaliation and sexual harassment cases before the Equal Employment Opportunity Commission (EEOC) and/or individual federal agency EEO offices. Many retaliation, discrimination or sexual harassment cases filed through the EEO process proceed to mediation, which is often a good idea.
This article discusses the EEO mediation process and the potential benefits associated with engaging in that process for both parties involved.
What is the EEO Mediation Process?
Mediation is a voluntary procedure where the parties attempt to avoid litigation and resolve a complaint early in the process. Once the EEO complaint process has started federal employees and agencies can attempt mediation first. If mediation is agreeable, then a mediator is assigned. The EEOC provides an excellent general summary of the general mediation process.
The mediator assigned to a case does not make a finding as to who is right or wrong and has no authority to impose a settlement on the employer and complainant. Instead, the EEO mediator attempts to assist the parties in exploring and resolving their differences and hopefully come to a settlement of the case. There is also no fee by from the federal agency for the mediator as it is a benefit provided by the federal government to resolve cases.
Who Attends the EEO Mediation Session?
Usually, once mediation is scheduled, both parties and their lawyers will attend, along with the mediator. The mediator can be someone employed by the agency or a third-party contractor. The background of a mediator varies significantly. It is very useful, however, to have an attorney for both parties to attempt to resolve the case at the earliest stage possible. Furthermore, once an agreement is reached you will need counsel to prepare a written agreement over the terms agreed to.
How Does EEO Mediation Work?
Usually, mediation will be held at a location located in a conference room at the federal agency. Sometimes mediation is conducted by Zoom or Microsoft Teams. The session will usually last from a few hours to a day. Once the mediation session begins, the process usually will proceed as follows:
1. The mediator provides a copy of the mediation agreement. The mediation agreement will ensure that any discussions at mediation are held confidential; they can’t be used later in litigation if settlement does not work out.
2. The mediator will begin by explaining the mediation process to the parties. Mediators, depending on their experience, how many different ways of conducting a mediation.
3. The parties will each provide an opening statement about their position in the case. It is often helpful for the employee to explain how they suffered discrimination, sexual harassment, or retaliation. The Government will then provide their own statement in response.
4. The parties will then usually discuss the EEO complaint. The mediator may attempt to steer the discussion into a dialogue to attempt to get the parties to begin a discussion.
5. The parties may then discuss resolving the complaint or the parties may be separated in separate rooms. A mediator may go back and forth between the parties discussing proposals and responses from each side.
6. The most important part of the mediation process are the caucus sessions; that is where most agreements are found.
7. The mediator will attempt to bring the parties to terms agreeable to both sides, typically a compromise between what both sides want. Sometimes this occurs, and sometimes this does not.
8. If settlement terms are agreed to, the next step will be to reduce the agreement to writing and have all parties execute the agreement.
Formal Written Settlement Agreement
Following a verbal agreement between the parties agreed to at mediation, a written settlement agreement is completed. Usually, where parties are represented by counsel, this will be drafted and reviewed by the attorneys. The agreement will bind both parties to a resolution and the agreed-to terms of the settlement (e.g. reinstatement, benefits, severance, backpay, promotion, attorney fees). When a settlement agreement is signed, the EEO complaint will be then withdrawn as part of the agreement.
According to EEOC statistics, the settlement rate at mediation is approximately 72-75%. We consider it a victory if both parties can resolve a case and save the time and costs of further litigation through dispute resolution efforts.
When Mediation Doesn’t Work Out
If mediation doesn’t work out, then the parties can return to the normal complaint process without any loss of rights. An investigator will be assigned and conduct the investigation. It is generally a good idea to try to mediate an EEO complaint first before going through the investigative process, as many cases do settle.
If you are a federal employee in need of assistance with filing an EEO complaint or mediation, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
We often are asked by employees about their options for filing a discrimination or harassment complaint in Virginia. The answer is that it depends on many factors. For private, federal and other public sector employees in Virginia there are a number of options for filing a complaint of discrimination, sexual harassment, retaliation and/or an ongoing hostile work environment. The proper place for filing the complaint depends on a number of factors, including what type of employee you are, the type of discrimination, where you live, and your type of employer. When considering filing this type of complaint it is generally important to consult an attorney to determine the best forum in which to file your complaint. Additionally, it is important to note that where there is more than one option for filing a discrimination or harassment complaint that it is important to get legal advice on the best option given the facts of a particular case.
Federal Employees in Virginia
For federal employees in Virginia, the usual method of filing an Equal Employment Opportunity (EEO) complaint is to go through their federal agency’s EEO office within 45 days of the date of discrimination. This short deadline can usually be satisfied by contacting a federal EEO counselor contact directly. Federal agencies will provide the EEO contact information for federal EEO complaint counselors. The formal complaint process will follow later if the matter is not resolved. There are also other, less common, routes for filing a federal employee discrimination/harassment complaint, such as filing a grievance (where permitted) and/or a complaint though the Office of Special Counsel, but these are usually not effective when compared to a federal employee’s options at the EEOC.
Private Sector Employees in Virginia
For private sector employees (individuals employed by private companies) in Virginia, there are a number of potential options for filing a discrimination or harassment complaint depending on where they live and the size of their employer. A private sector employee employed by a company with 15 employees or more may file a complaint with the Equal Employment Opportunity Commission (EEOC), which is the most common route for those employed by private businesses. The deadline for doing so in Virginia is generally 180 days which can be extended to 300 days, because of a worksharing agreement between Virginia and the EEOC.
A private sector employee can also file a discrimination/harassment complaint with the Virginia Division of Human Rights (DHR) if their employer has 6 to 14 employees, but less than 15 (except for age discrimination claims, when coverage extends to businesses that employ between 6 to 20 employees). A private sector employee, if the matter involves a government contractor, can also file a complaint with the Office of Federal Contract Compliance Programs (OFCCP), but this complaint process is less commonly used. Lastly, some counties and municipalities in Virginia have enacted discrimination and harassment ordinances, like Fairfax County and Arlington County which also have procedures for filing complaints. The deadlines for county filings can vary between 180 and 365 days, depending on county. In sum, it is important to figure out the correct forum and to file a claim well in advance of any deadlines.
State Employees in the Commonwealth of Virginia
State employees in Virginia have somewhat different discrimination/harassment complaint options. These include filing a complaint with the Virginia Department of Human Resource Management, Office of Equal Employment Opportunity Services (OEES) or the EEOC. These rules have been in flux given that they were provided by Executive Order, which have not been renewed in the past but are currently in effect.
County and Local Employees in Virginia
Finally, county employees have options for filing a discrimination complaints in Virginia as well. They may generally file discrimination/harassment complaints with the EEOC, or if covered by their county or municipality, a local claim. By far, the majority of county employees take their cases to the EEOC and then to the court system, if their matter is not resolved.
Conclusion
It is very important to consult an attorney before choosing a forum in which to file a discrimination / harassment complaint because the correct place for filing complaints vary on the facts of the claim, location and size and nature of the employer. If you need assistance with filing an employment discrimination or harassment complaint, 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.
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.
