The Informal EEO Complaint Process for Federal Employees
Federal employees begin the EEO complaint process with an informal complaint. The informal complaint process is just the initial step for federal employees who believe that they have been discriminated against. Federal employees bring claims on the basis of race, color, religion, national origin, age, disability, genetic information, pregnancy or other grounds against their agency. In order to begin the EEO process, a federal employee (complainant), must initiate contact with agency’s EEO office.
How to Initiate Contact
A federal employee must initiate contact with an EEO counselor within 45 days of the discrimination. This is how the informal EEO Complaint process begins. Specifically, the individual must initiate contact with a counselor “within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.” 29 C.F.R. § 1614.105 (a) (1). There can be exceptions where the conduct at issue has involved an ongoing hostile work environment. Additionally, there could be an exception where circumstances outside of the individual’s control prohibited timely contact.
That said, it isn’t always clear who a federal employee should contact first to begin the informal process. Every federal agency has different organizational structures for their EEO offices. A federal employee complainant can usually meet this requirement by contacting an agency official who is connected to the EEO process. It is best, however, for the complainant to reach out to the agency’s EEO office, in advance of the deadline. Doing so puts the complainant or counsel in the best position to find the best contact. The agency’s EEO office should readily provide this appropriate EEO counselor or contact.
In our practice, we generally prepare a notice of the discrimination that has occurred, in writing, as part of the informal process where possible. This can be used later as proof that timely contact occurred and also demonstrate what claims were brought within the 45-day period. It is not uncommon for agencies to later argue that not all of a complainant’s claims were brought through the informal EEO process.
After Initial Contact – Counseling or ADR/Mediation?
After contact with the EEO office has been initiated, the next step is to consider which initial option the federal employee wants to pursue. The EEO counselor will provide a federal employee and his or her counsel with paperwork outlining the rights they have in the process. For many federal agencies, the complainant will have an option to request immediate EEO counseling or to seek to mediate their EEO dispute. Our lawyers often resolve EEO disputes early on through the mediation process.
a. Pre-complaint EEO Counseling
Pre-complaint EEO counseling is mandatory. It may not be waived by either the agency or the complainant. It is a requirement to filing a formal EEO complaint. Pre-complaint counseling is also referred to as “informal” counseling. This is because the commission’s regulations, at 29 C.F.R. 1614.105(a), require counselors to “try to informally resolve the matter.”
b. EEO Mediation
Some complainants will have the option of using alternative dispute resolution (ADR) processes such as mediation to resolve their complaint early. An agency has discretion to decide whether it will offer ADR in a particular given case. In sum, an agency is required to have an ADR program, but it is not required to offer ADR in every case. Our firm frequently represents federal employees in the EEO mediation process. If successful, the EEO mediation process will result in a settlement agreement between the federal employee and the agency. The written settlement agreement will then resolve all claims between the parties.
Conclusion & Notice of Final Interview
If the EEO informal complaint has not been resolved through early counseling or mediation and settlement, a final interview will be conducted. This is the end of the informal EEO complaint process. This is often conducted by email, where the individual receives a notice of right to file a formal EEO complaint. The notice will explain the next steps and deadlines associated with continuing in the process.
Filing of Formal Complaint
While the formal complaint process is different than the informal process, they both have deadlines. It is important to note that when a federal employee receives notice of a right to file a formal complaint they normally have 15 days to file it. The formal complaint process is one where the federal employee specifies the exact issues of discrimination and remedies sought. It is important to have legal counsel for this process. Formal EEO complaints often require the completion of an agency-specific form. Additionally, the formal EEO complaint should include a detailed narrative of the discrimination claims.
Contact Us
Our law firm represents and advises federal employees in EEO complaints and mediation. If you need legal assistance regarding an EEO complaint, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
