What are the deadlines for the federal EEO process? What are the various stages of the federal EEO process? What happens at each stage in the federal EEO process? These are common questions that federal employees ask about the federal EEO process to no fault of their own. The EEO process even when communicated in the most simplest terms still consists of various stages all beholden to different deadlines. Each stage may also consist of different options for the federal employee to pursue. For instance, EEO counseling vs. EEO mediation, EEOC hearing vs. final agency decision (FAD)? To raise the stakes, failure to meet any deadline or correctly state your EEO complaint can result in your complaint’s dismissal. Below is a summary of key stages, timelines and deadlines of the federal EEO process.
1. Do I have an EEO complaint or case?
A common misconception employees have about EEO-related laws is that all harassment, retaliation and discrimination illegal. That’s not exactly true. Harassment, discrimination and retaliation is only illegal under EEO-related laws if it occurs because of your membership in a protected class, e.g., race, color, national origin, gender, sex, religion, disaibility, etc. Said differently, it is not illegal for your supervisor to be a jerk toward you. It is illegal to be a jerk toward you because of your race or religion, for example.
If you do not believe your mistreatment occurred because of your membership in a protected class then you should seriously consider bringing forward your complaint to the Equal Employment Opportunity Commission (EEOC). That doesn’t mean you have no legal recourse available to you. For instance, while your potential case may not be appropriate for the EEOC, it may be appropriate for the Office of Special Counsel (OSC) or the Merit Systems Protection Board (MSPB).
If you do believe the mistreatment occurred because of your membership in a protected class you may want to file your complaint with the EEOC. If you chose to do so keep in mind the below information.
2. Contact EEO Counselor (the informal EEO complaint process)
Before you can file a complaint with the EEOC, you must contact your EEO counselor within 45 days from when the discrimination, harassment or retaliation occurred. This is important so it is worth repeating–you have 45 days from the date of the discrimination, harassment or retaliation to contact the EEO counselor. A best practice is to document your contact (email) with the EEO counselor to avoid any future disputes about the timeliness of your contact with the EEO counselor. The information you provide the EEO counselor when you contact them is frequently referred to as an informal EEO complaint or the EEO pre-complaint both of which mean the same thing and can be used interchangeably.
3. How to identify your EEO counselor?
Generally, you can find the EEO counselor’s email or phone number on your agency website. Oftentimes entering your Agency name and EEO counselor into a web browser will bring you to the right webpage with the EEO counselor’s contact information. Example, if you work for the FAA then search “FAA EEO Counselor Contact Information.” If that doesn’t work, navigate to the EEO Office webpage for your agency or a webpage relating to civil rights. If this still does not work, you can email your HR representative. Once you contact the EEO counselor you begin the informal EEO complaint process.
If you miss the 45 day deadline that does not mean you are out of luck. You should contact a federal employment attorney to discuss your options regarding how you may still be able to submit a timely EEO complaint.
4. What happens during EEO counseling/mediation (ADR)?
The EEO counselor maintains a neutral role throughout the EEO counseling process. They do not advocate for the employee or the agency–instead their goal is to facilitate a mutually agreeable solution between both parties and to extent conduct a limited inquiry into the EEO allegations. The EEO counselor will explain to you the EEO process, next steps, and discuss your EEO complaints and allegations. The EEO counselor will likely conduct a limited investigation (fact-finding) into your EEO complaints.
One of the first questions the EEO counselor will ask you is whether you would like to participate in EEO mediation also referred to as alternative dispute resolution (ADR). Each has its pros and cons. We recommend discussing your options with an experienced federal employment attorney to develop a strategy tailored to your goals and particular EEO complaint.
5. How long does EEO counseling or mediation last?
Both last between 30 to 90 days. With respect to EEO counseling, if the EEO counselor cannot complete their inquiry within 30 days they may request to extend up to 90 days total. Before this can happen, they need to notify you in writing of their extension request and you must agree to it. At any point at or after the 30th day mark, you may request the EEO counselor to stop and provide you with your notice of right to file a formal complaint.
With respect to EEO mediation/ADR, you can request to stop the process at any point at or after the 30th day mark. It may be wise to stop the EEO mediation process if you do not believe an agreeable solution will be achieved and therefore do not want to invest more time in a process unlikely to produce a favorable result.
6. When do you file a formal EEO complaint?
Once EEO counseling or mediation ends, your EEO counselor will provide you with a notice of right to file a formal EEO complaint. Read this carefully to understand your rights, next steps, and deadlines. Once you receive the notice of right to file, you have 15 days to file a formal complaint. It is of utmost importance that you file your formal EEO complaint within 15 days.
It is also critical that you accurately and completely identify all your EEO complaints (allegations) within your formal complaint. The allegations in your formal EEO complaint form the basis of what the EEO investigator will look into, and ultimately the allegations a Judge considers when deciding whether the Agency violated your EEO rights.
Now is a great time to contact a federal employment attorney to review your EEO formal complaint to ensure you accurately and completely state your allegations. While it is always possible to amend your formal complaint, it is easier and to your advantage to completely articulate your EEO complaint at this stage to conserve costs, reduce delays and ensure acceptable of all your EEO allegations.
7. What happens during the EEO investigation?
Once you file the formal complaint and it is accepted a detailed investigation will take place that lasts up to 180 days. Sometimes it may last longer. The EEO investigator gathers relevant evidence to evaluate your allegations. Evidence includes written statements from you, the accused and other witnesses. The EEO investigation also collects written evidence like applicable policies, emails, performance reviews, disciplinary information, e.g., letters of counseling, written warnings, letters of reprimand and other information.
At the conclusion of the EEO investigation, the EEO investigator compiles their analysis along with any evidence they gathered to you via a “report of investigation” commonly referred to as a ROI.
8. Should I choose an EEOC hearing or a Final Agency Decision (FAD)?
When you receive the ROI read over it carefully. You will need to decide whether you’d like to proceed with your EEO complaint. If you elect to proceed you need to choose either a final agency decision (FAD) or request an EEOC hearing before an EEOC Judge. You have 30 days to make this decision and submit it to the EEOC.
If you chose to request an EEOC hearing, you must submit your request in writing or via the EEOC Public Portal located at https://publicportal.eeoc.gov/.