“Representing Federal Employees in Discrimination Cases” Part 1 – Introduction and Administrative Structure
The following excerpt is part of a series on “Representing Federal Employees in Discrimination Cases” by James Weliky. Click here for more information.
This article is written for counsel considering their first foray into the world of representing federal employees. It summarizes the administrative EEO process required to be followed by all those claiming discrimination. This is not a guide to the court litigation of federal employees’ claims, nor is it a guide to administrative EEOC hearings. It should be noted that, as the title suggests, this article is intended to be an overview of the pre-hearing investigative process, and for every assertion of fact there is probably an exception specified in the rules. Thus this article is no substitute for a thorough understanding of the law and regulations. Nor is it a substitute for panicked late-night telephone calls to other federal practitioners or equally panicked postings to the “federal employment” conference on NELANet.
Important Resources for the EEO Litigant
The following are “must-have” resources for anyone undertaking to represent federal employees through the EEO process:
- 29 C.F.R. Part 1614 [EEO Procedures]
- 5 C.F.R. Part 1201 [Merit Systems Protection Board Procedures]
- Equal Employment Opportunity Commission Equal Employment Opportunity Management Directive, EEO MD-110 [Federal Sector Complaints Processing Manual]
- Federal Employees Legal Survival Guide (2d ed.), Passman & Kaplan, P.C., Workplace Fairness (2004)
- A Guide to Federal Sector Employment Law & Practice, Ernest C. Hadley, Dewey Publications, Inc. (2011 Edition)
- The federal employee conference on NELANet, at www.nela.org
- www.eeoc.gov [Equal Employment Opportunity Commission web site – note that you can access decisions of the EEOC’s appellate body, the Office of Federal Operations, for the period July 2000 through the present]
- www.cyberfeds.com [designed for human resources personnel, have to pay to use]
- www.mspb.gov [Merit Systems Protection Board web site]
- An individual agency’s guide to the EEO process
Federal Employees Administrative Structure
Federal employees have a byzantine processing system which they are required to use (in most cases) in order to preserve their claims for discrimination. Employees lose their opportunity to seek relief in federal court unless the process is followed, although there are several opportunities to opt out early in the process. At minimum, however, all employees (with the exception of Equal Pay Act claimants who can avoid the process altogether) must contact an EEO counselor to initiate an initial informal counseling process. After initiating the counseling process, there follow a series of opportunities to opt out and file in court, but also a series of opportunities for relatively informal discovery as well as for settlement.
Every federal agency is required to establish an Equal Employment Opportunity program, whose mission is purportedly to process EEO complaints and maintain other programs to eradicate discrimination and support the agency’s affirmative action responsibilities. 29 C.F.R. § 1614.102. The agency is required to appoint a director of Equal Employment Opportunity and such staff as are necessary to carry out the functions of the EEO program, including EEO Officers and EEO Counselors. Id. This EEO office is charged with overseeing the processing of EEO complaints until the case is transferred to the EEOC for administrative hearing. This means that the federal employee always has a particular individual to whom she must first go with her EEO complaint. If the employee does not know who that individual is, the agency’s EEO office will be able to tell her. Each agency is charged with adopting its own EEO procedures, although they must conform to the strictures of 29 C.F.R. §1614.
The EEO process itself can be divided into several successive stages (assuming the employee does not opt out along the way). The claimant must first contact the EEO counselor to initiate the informal process. When that process is concluded, the employee must file a formal complaint. Once the formal complaint is filed and accepted (see discussion below), an agency investigation begins. At the conclusion of the investigation, the employee has an absolute right to a hearing before an administrative judge. If this is requested, then a period of discovery ensues, followed by a summary judgment process, and the hearing itself. The AJ issues findings of fact and conclusions of law and remedies. The agency then decides whether to accept or reject (in whole or in part) the AJ’s findings, which decision can then be appealed to the EEOC’s Office of Federal Operations (“OFO”).
Employees may be represented by counsel throughout the process, or may represent themselves, or may designate a co-worker to represent them. EEO program staff may not act as agency, or employee, representatives in the processing of complaints. 29 C.F.R. §1614.605.
All of the deadlines mentioned below are subject to waiver, estoppel and equitable tolling. 29 C.F .R. §1614.604.