“Representing Federal Employees in Discrimination Cases” Part 6 – Why Bother?
The following excerpt is part of a series on “Representing Federal Employees in Discrimination Cases” by James Weliky. Click here for more information.
Given that the federal employee has numerous opportunities to opt out of the EEO process altogether and go straight to federal court, and given that chances of success at the AJ stage are relatively low, and given that after the entire process the agency can just ignore findings of discrimination anyway, why should you spend the innumerable hours of time required to pursue EEO complaints to their final, long delayed, end? Based on our experience, there are several reasons.
First, there are many serious acts of discrimination visited upon federal employees where actual damages are low. What is more, such common discriminatory tactics as denials of minor promotions, negative evaluations and unsatisfactory reassignments, while having a major impact on the employee forced to undergo them, are regarded by federal judges as “minor” and not worth the courts’ time. In short, there are many instances where pursuing a discrimination claim in court is not a viable option, either financially or strategically.
Second, the informality of the process sometimes encourages the agency to take its defense less seriously, and evildoers are liable to say things on the record that they would be less likely to say under the formal, and highly contested, context of a court proceeding. In one particular case this firm handled, agency officials in the course of investigations virtually admitted to discrimination, repeatedly contradicted each other’s testimony, and made statements in direct contradiction of documentary evidence.
Third, you can get to the evidence, such as witnesses’ memories, faster through the EEO process because of the strict deadlines than you will through an extended court discovery process.
Fourth, the process provides two points where the possibility of settlement is enhanced: (1) at the end of the investigative process; and (2) following positive findings of discrimination by the administrative judge.
Fifth, the process is relatively less expensive than pursuing discovery in court, documents obtained during the investigation/AJ pre-hearing process, and statements made under oath, are equally as admissible in court as at the agency, and this in turn can sometimes reduce the need for, or extent of, discovery once you are in court.
Sixth, it is sometimes the case that AJ’s employed by the EEOC know and understand, and are less reflexively hostile to, employment discrimination law than are their colleagues on the federal bench.
 Any time for Equal Pay Act complaints; after 30 days notice to the EEOC and within 180 days of discriminatory act for ADEA complaints; within 90 days of FAD if no appeal filed, or 90 days of FAD after OFO’s final decision on appeal; after 180 days of filing formal complaint if no FAD or appeal filed; after 180 days of filing appeal with OFO if no final decision from the OFO.