Federal Employees Employment Discrimination Case Processing Procedures

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Contact An EEO Counselor At Your Agency Immediately

Federal regulations impose a surprisingly short time limit on federal employees to initiate a discrimination case. Generally, an EEO counselor must be contacted within 45 days.


Contact A Qualified Federal Sector Employment Lawyer

You will be at a great disadvantage if you must work your way through the entire federal sector process without counsel. Remember, the managers who discriminated against will be represented by the entire team at the Agency's Office of General Counsel. You should not expect to defeat the Office of General Counsel without your own lawyer, and the longer you wait to get, or at the very least, consult counsel, the greater the advantages you will be giving to your opponent.


Communicate Your Complaint to the EEO Counselor And Decide Whether To Seek "Anonymity"

The EEO counselor will ask you to explain what happened. Provide an explanation, but always be sure to also draw the counselor's attention (if applicable), to management's lack of a viable explanation for what was done to you. Most employment discrimination cases are ultimately focused heavily on management's explanation for its actions, and whether that explanation is really the truth. Until you know the explanation being set forth, it is difficult, if not impossible, to know whether it is true. You will be offered the opportunity to remain "anonymous". There are times when this can be beneficial to you. However, beware that if you choose anonymity and are later retaliated against, the Agency may well contend that the manager who retaliated against you was not really motivated by revenge, and that the manager did not even know you made a complaint. I have another guide on this subject, and material on my web site as well.


Elect To "File Formal," And Provide An Affidavit To The EEO Investigator

EEO counseling can occasionally lead to a resolution of your case, but if it does not, you will have a brief period during which you may file a formal complaint. During the formal complaint process, the agency will assign an "investigator" who will collect affidavits from witnesses and other evidence, before issuing a report. As with the informal process, the formal complaint investigation does not initially involve typical litigation steps such as an opportunity to cross examine witnesses, and no result or conclusion will be reached.


Request A Hearing Before An Administrative Judge Of The EEOC, Or File A Lawsuit In Court

Once the report of investigation is issued by the agency's chosen investigator, you will be afforded the opportunity to seek a hearing or request a final agency decision. You may also choose to go straight to filing your lawsuit in court, so long as it has been at least 180 days since you filed your formal complaint. Most of the time, you would not request a final agency decision from the agency that is accused of the discrimination, since, predictably, the vast majority of those decisions are in favor of the agency.


Hearing Before EEOC Administrative Judge

If you elect a hearing before the administrative judge, that proceeding is similar to a bench trial in court. Witnesses are cross-examined, and although the judge has no power to subpoena witnesses who are not federal employees, the agency will be required to bring its employees to testify. Most administrative judge decisions favor the agency.


Final Agency Decision

After the administrative judge issues a decision, the Agency can either accept or reject that decision, through a "Final Agency Decision," or "FAD". It is a rare case in which an agency finds that it discriminated unless the administrative judge did so first.


Appeal to the Office of Federal Operations

A written appeal of the FAD can be presented to the EEOC's Office of Federal Operations.


Another Opportunity to File Suit In Court

At any point after the 180th day following your formal compaint, and again at the conclusion of the administrative processing, you may file a "de novo" "private right of action," meaning a fresh lawsuit in federal district court. Your having lost the case during the administrative stage is now irrelevant. Information you have discovered during the administrative litigation can, under proper circumstances, be presented as evidence in your lawsuit.

Additional Resources

Examples of Federal Employee Losing At Administrative Hearing, Then Winning At Jury Trial

Preventing Employer Retaliation and Winning Retaliation Cases: If You Plan to Protest Discrimination, Protest Loud and Clear

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