EEO Mediation for Federal Employees

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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.

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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.

If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process.

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