By John V. Berry, Esq., www.berrylegal.com
We are often asked by federal employees and applicants about how to file an Equal Employment Opportunity (EEO) complaint for discrimination, sexual harassment or retaliation. A federal employee has different options for filing an EEO complaint than a private sector employee (and shorter deadlines) so it is important to understand the basics in moving forward.
First Step – Evaluate the Basis for the EEO Complaint
Before initiating the EEO complaint process, a federal employee should evaluate the specific grounds for their EEO complaint. Does the claim just involve race discrimination or race discrimination and retaliation? These are important questions to ask in advance. It is very important to ensure that all EEO claims are appropriately identified before the EEO counselor is contacted. It is often the case that some, but not all of the potential claims are identified when the complaint process begins. This can cause some claims to be dismissed later in the process because they were not discussed with the counselor. Consult with an attorney prior to initiating contact with the EEO office where possible.
Potential EEO claims to evaluate include discrimination on the basis of race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. Other claims include sexual harassment, hostile work environment and retaliation.
Second Step – Contact the EEO Counselor
It is critical to initiate contact with the EEO office at a federal employee’s agency within 45 days (do not wait to contact the counselor). If the EEO counselor has not been contacted within that period of time, the complaint may be dismissed for untimeliness. It is also important to have a written record of the initial EEO informal complaint where possible in order to demonstrate the claims brought to the EEO counselor.
Third Step – Consider Alternative Dispute Resolution
The EEO counselor, once they have been contacted, may suggest potential mediation. Many federal agencies will agree to alternative dispute resolution (ADR) in order to attempt to resolve complaints of discrimination, harassment and retaliation. We usually recommend considering this option as a means to expedite a resolution in a case. If ADR is unsuccessful, the federal employee may resume the formal EEO process. If ADR is successful, the entire matter is resolved.
Fourth Step – Filing of Formal EEO Complaint
Should ADR fail and the EEO claims are not resolved, then the federal employee will be provided a notice of right to file a formal complaint. Typically, the deadline to file the formal EEO complaint is 15 days. It is very important to ensure that the formal complaint is timely. A federal employee will be provided a formal complaint form and must submit a complete list of the claims raised earlier, along with other information. The complaint will then be submitted.
Fifth Step – Investigation of Formal EEO Complaint
Following the filing of the formal EEO complaint (sample form), the EEO investigator will begin work on investigating the issues outlined in the formal EEO complaint. Individuals will be interviewed, including the complainant, and documents will be obtained in order to complete the investigation. The federal employee filing the EEO complaint will be among the first to be interviewed, followed by the individual accused of discrimination, sexual harassment or retaliation. During this process, it is important for an individual to have an EEO attorney represent them in filing the formal response. Additionally, since the federal employee involved will be interviewed, it is important to prepare them for the formal complaint interview.
Sixth Step – Completion of the Investigation
A federal agency generally has 180 days from the day you filed your complaint to finish the investigation. A Report of Investigation (ROI) will be generated which includes witness affidavits and other relevant documents. If the investigation is not completed, other options for seeking a hearing arise. It is usually recommended that the federal employee await the completion of the investigation process because it will provide a clearer picture of the information gathered during the investigation and can enhance the discovery process later if a hearing is required.
Seventh Step – The Federal Employee Selects an EEOC Hearing or an Agency Final Decision
When the EEO investigation is completed, the EEO investigator and federal agency will issue a notice to the federal employee providing 2 choices: (1) requesting a hearing before an EEOC Administrative Judge; or (2) asking the federal agency to issue a decision as to whether the EEO claims occurred. It is generally recommended that option 1 be selected (the hearing request) given that federal agencies are highly unlikely to issue an adverse decision against themselves. Following the EEOC hearing process or the Agency final decision, the matter may move into the federal courts if needed.
If you need assistance in filing an EEO 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 at www.facebook.com/BerryBerryPllc.