This guide provides an overview of discrimination (EEOC) law and what constitutes illegal discrimination and it reviews the process a federal employee’s discrimination case will take from start to finish.
This guide was written by an attorney with years of experience practicing in this area of law, both as an agency attorney, representing the federal government, as an attorney in private practice representing employees who have been discriminated against.
Feel free to read the guide in full, or use the table of contents below to jump quickly to a section of specific interest.
- 1 Discrimination (EEOC) Law Basics
- 1.1 Who is this guide for?
- 1.2 EEOC Background
- 1.3 Federally recognized protected classes
- 1.3.1 Age
- 1.3.2 Race / Color
- 1.3.3 Religion
- 1.3.4 National Origin
- 1.3.5 Sex
- 1.3.6 Retaliation for reporting discrimination
- 1.3.7 Pregnancy, childbirth, or related medical conditions
- 1.3.8 Equal pay / Compensation based on gender
- 1.3.9 Disability and failure to reasonably accommodate a disability (Rehab Act)
- 1.3.10 Genetic Information (Genetic Information Nondiscrimination Act of 2008 [GINA])
- 1.3.11 Veteran Status (jurisdiction may be at MSPB)
- 1.4 Theories of discrimination
- 1.5 Public/Federal vs. Private Sector EEO Law
- 2 What to do if you are a federal employee who was subject to discrimination?
- 2.1 If you wait you can lose your claim
- 2.2 Contacting your EEO Counselor
- 2.3 Documenting discriminatory incidents
- 2.4 Informal EEO Counseling
- 2.5 Formal EEO Complaint
- 2.6 Investigation Phase
- 2.7 Completion of Investigation
- 2.8 180-days to complete the investigation
- 3 Proceeding with your case, your options
- 3.1 EEOC Hearing
- 3.2 Appeal to EEOC Office of Federal Operations (OFO)
- 3.3 Appeal to Federal District Court
- 4 A judgment in your favor
Discrimination (EEOC) Law Basics
This guide provides an overview of federal discrimination law. It explains the path a discrimination case takes from the initial complaint all the way to final resolution. After reviewing this guide, you should have a better idea about what is considered discrimination, what the law protects and does not protect, and the type of remedies available to those who have been the victim of discrimination.
Who is this guide for?
This guide will be helpful for federal employees who want to learn more about the EEOC process in the public sector. Whether you think you have been the victim of discrimination and are wondering about your options, or you have already started the process and want to know what to expect, this guide should be helpful.
The guide provides an overview of the substantive law of discrimination along with an explanation of the procedural processes related to pursuing your claim. With this information you should get a good idea if you have a potential claim and what you have to do to pursue it.
The Equal Employment Opportunity Commission (EEOC) is a federal agency, that enforces laws against workplace discrimination. It was founded in 1965 as mandated by Title VII of the Civil Rights Act of 1964 which outlaws discrimination based on race, color, religion, sex, or national origin. The EEOC has jurisdiction to hear cases related to other laws that protect individuals from discrimination based on other classifications as well.
Federal employees can make valid claims to the EEOC if they are discriminated based upon their membership in a protected class. A protected class is a characteristic for which a person cannot be targeted for discrimination. In more simple terms, it is illegal for your employer to discriminate against you if you belong to one of the classes listed below.
Federally recognized protected classes
Race / Color
Retaliation for reporting discrimination
Equal pay / Compensation based on gender
Disability and failure to reasonably accommodate a disability (Rehab Act)
Genetic Information (Genetic Information Nondiscrimination Act of 2008 [GINA])
Veteran Status (jurisdiction may be at MSPB)
It is important that any claim be based on membership in protected class.
For example, if your boss does not like you and gives you bad assignments because you are a fan of a rival football team, that is not a protected basis under which you would have a valid claim of discrimination.
Now, if on the other hand, your boss is a man, you’re a woman, and he despises you because of your gender, and the football rivalry is only pretext, you likely have a legitimate claim of discrimination.
In many cases it will be a fine line–most people are not transparent and forthcoming about their prejudices–but for a case to be successful the more evidence that you have that you were mistreated, or denied benefits, based on your membership to protected status, the more likely your claim is to succeed.
Theories of discrimination
The federally recognized protected classes listed above are used as the foundation for advancing various theories of discrimination.
Theories of discrimination, are essentially the means by which the harm to you as a member of a protected class were perpetuated.
In short the basic equation for a discrimination case looks like this:
[Membership in a federally protected class] + [Some harm based on a recognized theory of discrimination] = Discrimination Claim
Below are the most commonly advanced theories of discrimination. They can have overlap, and in many instances multiple theories will be advanced in a single case. The theory in your case may be different, or more nuanced, but the list below covers the most commonly advanced theories of discrimination.
1. Direct Evidence (intentional discrimination)
Direct evidence is essentially a direct admission by an agency or management that they took an action based on a discriminatory impetus. An example would be a manager admitting he didn’t hire someone because they were black, or that he didn’t promote a woman because she would get pregnant.
For obvious reasons, direct evidence is unlikely to be found in most cases. Generally, people will come up with some sort of pretext, a non-discriminatory reason, to justify their discriminatory actions. Direct evidence is hard to come by, but if you have it, generally, you have a very strong case. In these instances, settlement prior to litigation is likely.
2. Disparate Treatment
Disparate treatment is more nuanced than direct discrimination. While there is an intent to discriminate, the discrimination is not done in an obvious or direct way. The discrimination is still there, it is just buried below the surface.
Disparate treatment means that you are treated differently than other, similarly situated, individuals based on your membership in a protected class. A classic example of this would be that you were denied promotions based on your gender when other employees with similar performance and experience (but different gender) were promoted. Or the converse, that you were disciplined more harshly than similarly situated employees based on your membership in a protected class.* This requires that you demonstrate, ideally through objective evidence, that you were treated differently as a result of your membership in a protected class.
*One pointer that some clients get stuck on is that no one is entitled to treat others differently because of their membership in a protected class. For example, it is still unlawful for a black supervisor to be more demanding of his black employees simply because of their race. His membership in that same class does not permit him to engage in unlawful discrimination.
Harassment can be shown over an on-going basis where regular incidents or acts cause a detrimental affect on an individual resulting in appreciable harm. Additionally, harassment can be evidenced based on a single incident if that incident is extremely severe in nature. Measuring the severity of an individual incident is somewhat subjective but the standard is that just that single incident would cause appreciable harm to a reasonable person that was also a member in that protected class.
The key factors to look at regarding harassment are the severity of the incidents, the regularity, and the affect such events would have on a reasonable person. Generally, the more egregious the acts are, the less frequent they need to be to support a case.
Retaliation occurs when you have engaged in a protected EEO activity, such as filing a complaint or participating in an investigation (e.g., providing statements to an investigator or testifying at an EEOC hearing), and you suffer harm as a result of your participation in that activity. In short, you cannot be retaliated against for participating in the EEO process.
An example of retaliation would be your manager failing to give you a promotion, based on you providing unfavorable testimony in another employee’s EEO case.
Retaliation can also occur when you file a complaint of discrimination and management punishes you for lodging your claim. Note that you would have to initiate a separate EEO claim, or amend your already filed claim, to include the retaliation claim. Many individuals end up filing additional claims of retaliation after filing an initial EEO claim under other theories.
5. Adverse Impact Theory
Adverse impact theory is most commonly advanced in class action cases where a group of plaintiffs file in concert. An adverse impact claim alleges that a facially neutral practice has a discriminatory, or adverse, impact. It is not necessary to show a discriminatory intent, only a discriminatory effect.
An example of an adverse impact claim would be an agency policy to favor college education over work experience. This facially neutral policy could be shown to have an adverse impact on on older workers who were less likely to possess a college degree, but would have more work experience.
The adverse impact theory can require statistical analysis and typically applies to a large group of similarly situated individuals, a class. This is not to say the theory is not viable, it certainly is, however, sometimes it evades detection because it is facially neutral and can be difficult to prove.
6. Disability Discrimination – reasonable accommodation
While covered in more detail in our guides dealing with disability law, an individual that has a disability as recognized by federal law that is denied a reasonable accommodation by their employer can file a discrimination claim. The law is nuanced, but in essence you must prove: 1) that you are disabled; 2) you can perform the essential functions of your job; 3) you requested a reasonable accommodation; 4) the agency denied your accommodation; 5) the denial was not legally supported.
Public/Federal vs. Private Sector EEO Law
The EEOC operates in both the private a public (federal) sectors. The procedural laws that apply to the public sector differ from the private sector, sometimes significantly, especially regarding the deadlines for reporting and prosecuting a claim of discrimination. In private sector cases, typically the EEOC will investigate a company after a complaint. If the claim is sufficient, in some cases the EEOC will file suit. Otherwise, the EEOC will provide you with a “Notice-of-Right-to-Sue” which provides you with the details and right to file your case in court.
By contrast, in the federal sector, the impetus is on the federal employee to report and pursue their case against federal agencies. As mentioned above, the deadlines are drastically different between the two sectors. In private sector cases, you have 180, and sometimes 300, days to lodge a claim of discrimination after it occurs. Whereas in the public sector, you typically must report any discriminatory act within 45 days. Below is some additional information on the deadline to file and the process a case follows after the initial allegation of discrimination is lodged.
- You only have 45 days to report discrimination in the federal workplace
- EEOC Process (federal) Flow Chart
What to do if you are a federal employee who was subject to discrimination?
If you wait you can lose your claim
First and foremost, contact your EEO counselor as soon as you can. As mentioned above, you typically only have 45 days to report an act of discrimination to your EEO counselor. See 29 C.F.R. Section 1614.105. If you report something 46 days after it occurs, typically, you will have lost your right to pursue that claim. Do not wait!
Contacting your EEO Counselor
Every federal agency is required by law to post information about how to contact their EEO Office. The information will include the EEO Office location and what number to call to reach someone there. If you cannot find that information easily, in some instances simply searching the internet with “your agency + eeo office” (e.g., “Veterans Affairs EEO Office”) will get you the necessary contact information to begin the process.
Documenting discriminatory incidents
The strongest discrimination cases are the ones that have a great deal of evidence to support the claims. This means, document, document, document. Memorialize in writing any events that occurred, when they occurred, and all parties that were involved or witnesses the alleged discrimination. Further, you should record any adverse affects these events had on you, and any expense you have occurred in relation to the event. For example a simple log would look something like:
- 10/8/2014 @ 9:00am – My supervisor, Tom Smith, told me I wouldn’t be assigned the important project and it would go to one of my male colleagues because “women aren’t motivated enough, especially when, like you do, they have kids to take care of at home.”
- My colleagues, Ron Jacobs and Lauren Jones overhead Tom say this to me.
- I was very upset by this comment. I fear that I may not get promoted if I do not get assigned important team projects at the same rate of my colleagues. I am surprised by how much this has upset me and I’ve starting seeing a counselor once a week to help with my stress and depression stemming form this event.
- Counseling is costing me $120 every month.
Informal EEO Counseling
After you contact your EEO counselor to report a discriminatory event you are in the informal EEO counseling phase of the process. During this phase you will likely discuss your allegations of discrimination with the EEO counselor. They should explain your rights and they may invite you to engage in alternative dispute resolution (ADR) in lieu of filing a formal complaint of discrimination.
Formal EEO Complaint
After going through the EEO counseling process, the counselor will provide with documents which includes your notice of right to file, sometimes referred to as “Notice of Final Interview.”
Short 15-day deadline to file formal EEO complaint
The document your EEO counselor gives you will provide some information regarding your claims and inform you that if you want to file a formal complaint of discrimination you must do so within 15 days of the date you receive your notice of right to file. This is a very short deadline so you must act quickly. Delay could result in your claims being time barred. So, if you want to proceed with your claim you must file a formal complaint. Here is some additional information regarding filing a formal complaint.
If you decided to proceed with your claim and you submit your formal complaint, the investigation phase will begin. This process involves fact gathering by a neutral investigator. The investigator will conduct interviews and take in any relevant evidence they can find. At this point, if you have documentary evidence, such as a journal where you recorded discriminatory events, it would be wise to share this with the investigator so it becomes part of their record. Expect to be interviewed by the investigator. Additionally, if you have individuals that you think the investigator should speak to, like co-workers who witnessed discriminatory events, you should provide the names of those individuals to the investigator. Also, you will be given the opportunity to review transcripts of interviews and provide rebuttal statements.
Providing your side of the story
As mentioned above, during the investigation you will be interviewed and will have the opportunity to help shape the course of the investigation. This is a crucial point in your case. You should participate in this process and work with the investigator to lay the foundation for your case. The information you provide the investigator must be relevant, and when possible, supported by evidence beyond your statements. That means providing details related to incidents, including: dates, locations, witnesses, statements, and the affect these events had on you. If you received discriminatory letters or emails and they are available to you, you should provide them to the investigator.
Not to belabor the point, but document, document, document. The more evidence you can present the more difficult it will be for the agency to discredit your case later. A discrimination case that turns on the testimony of an employee vs. the testimony of a manager–he said she said–is not nearly as strong as a case that has pages and pages of notes regarding events and a list of 20 witnesses who can testify about those same events they witnesses first hand.
It is also worth noting that you should work with the investigator. Refusing to respond to them or provide statements could be prejudicial to your case. While the investigator is hired by the agency, they are required to be a neutral party and should treat all parties fairly.
Completion of Investigation
The agency will notify you when the investigation is complete. They should provide you with a complete copy of the report sometimes called a Report of Investigation (ROI). Upon completion you will be given choices regarding where your case goes next. You can have the agency issue a Final Agency Decision (FAD) or you can have the case referred to the EEOC directly for hearing.
180-days to complete the investigation
Investigations can take a long time. The EEOC laws provide that the agency has 180 days to conduct its investigation and produce its finding on the validity of your claims. If the agency fails to do so within 180 days you have the option, but are not required, to file your claim at the EEOC directly.
Proceeding with your case, your options
Final Agency Decision (FAD)
If you make no election after getting the ROI the agency will issue its decision (FAD) on the merits of your case. If no discrimination is found, or you disagree with parts of the decision you can appeal the decision directly to the EEOC or Federal Court.
If you choose to go directly to the EEOC after receiving your ROI, or appeal the FAD to EEOC, an administrative judge (AJ) will be assigned your case.
After being assigned to your case, the AJ will then send an Acknowledgement Order to you and the agency outlining your obligations, such as discovery, and any accompanying timetables and deadlines.
180 days for AJ to process your case
Typically the AJ must issue a decision within 180 days of receiving the formal complaint file from the agency, so this looming deadline will guide the progression of your case.
Typically, discovery begins 20 days after the Acknowledgement Order is received by the parties. Discovery is a very important phase of the process. It allows you, the claimant, to request information from the agency. The AJ can limit and modify the amount of discovery requested, but the baseline standard is that the requested evidence must be relevant to the issues raised in the complaint. Parties can request interrogatories, depositions, requests for admissions, stipulations, and request the other party produce documents.
The judge will outline their rules for discovery, typically AJ’s in EEO cases do not want to the copied on all the discovery requests and responses. Generally, they will only get involved if there is a dispute regarding production during discovery.
Sometimes referred to as “rogs” interrogatories are simply questions that you ask the other side via formal written letter.
A deposition is when an individual gives testimonial evidence for a case. Typically, a court reporter is present and the deposition is preserved via a transcript that can be referenced later. Depositions are helpful because you can learn quite a bit about a case through questioning the managers. Additionally, depositions can be used to demonstrate inconsistencies in testimony given at depo vs. the hearing.
Requests for admissions
Also referred to as “RFAs” these are typically reserved for uncontested facts you want the other party to admit to avoid having to prove it as part of the record later. Things such as: “Admit Manager Roy was employed at agency XYZ from March 2011- April 2014.”
Stipulations are facts that are agreed to by the parties. You can stipulate to just about any fact. Typically these should be in the form of a written agreement signed by both the parties.
The AJ will preside over the hearing and will control its progress and flow. The AJ will try to keep the hearing focused on relevant testimony and facts and may dismiss certain witnesses early if their testimony is not relevant or is unnecessarily duplicative of prior witness testimony. Parties that testify will be given an oath to tell the truth.
After the hearing has concluded the AJ will issue a decision. They can either issue a verbal bench decision at the conclusion of the hearing or they can issue a written decision. If they issue a written decision, typically it will come 30 days after the hearing has concluded.
Final Action by the Agency
After the AJ has issued their decision, the agency has 40 days to issue a final order. This final order will outline whether or not the agency will fully implement the decision of the AJ and will provide notification to you of your right to appeal to the EEOC or file an action in federal district court. If the agency takes no action within the 40 days they are deemed to have adopted the AJ’s decision and are obligated to comply with it.
Appeal to EEOC Office of Federal Operations (OFO)
A claimant can appeal a dismissal, final agency action, or decision to the Office of Federal Operations (OFO). They must file any appeal within 30 days of receipt of the action. More details about the appeal process can be found at 29 C.F.R. 1614.402.
Once appealed, the OFO will review the complaint and all written statements and briefs from both parties. You will have the option of submitting a brief, as will the agency.
OFO will then issue a decision or order depending on the specifics of your case.
Appeal to Federal District Court
Additionally, throughout the EEO process, you have the option of pursuing your case in federal district court as well. The right to file in federal court was added as a fail-safe in the event an agency drags their feet on processing a case, or the case is otherwise stalled in the administrative process.
Federal court is much more formal than the EEOC, MSPB and OFO. If you are considering bringing your case to federal court, you should already have, or consider hiring, an experienced attorney.
The regulations covering the right to file a civil action can be found at 29 C.F.R. § 1614.310. Additionally, if the agency fails to make adequate process investigating your case, and fails to provide you with your investigative file after 180 days, you have the option to file in district court as well. See 29 C.F.R. § 1614.108(g) and 29 C.F.R. § 1614.407(b).
A judgment in your favor
Ultimately, the goal of bringing your case is to remedy the wrongs you have suffered. If you are successful in your case the aim of the remedies you receive will be to put you in a position that you would have been had no discrimination had occurred. This means giving you back pay on a promotion you should have received, or providing you back pay the time you were wrongly removed from service. Additionally, any costs you accrued as a result of the discrimination, such as the cost of therapy or medical visits should be returned to you in the form of compensatory damages.
Typically, punitive damages are not available against governmental agencies. You may be entitled to other damages depending on the specific protected class and theory of discrimination you advance.
Damages can vary greatly and are very fact dependent. Again, the amount of documentation you have regarding the discrimination you have endured and costs or emotional/physical harm you have suffered as a result of the discrimination will go a long way to the amount of damages you will ultimately collect.
Additionally, many discrimination laws allow for the collection of attorney’s fees when the claimant is successful. There is a special area of caselaw dedicated solely to whether attorney’s fees can be collected or not, and it will depend greatly on the specifics of your case, and the outcome your attorney helped achieve for you.
If you have a question that was not answered above, or if you would like a consultation, do not hesitate to contact us. We have extensive federal employment law experience and can fight your discrimination case for you.
Additional you may find our guide related to discipline law for federal employee’s helpful.