Federal employees have a 45-day time period for filing an EEO complaint. However, determining when the time period begins is not always an easy task. Here are some tips to assist you in determining if a complaint is timely.
Time Period From the Date of the Incident
Where the complainant alleges an act is discriminatory, she must initiate EEO contact within 45 calendar days of the date of the act. This time limit applies to discrete acts of discrimination, as opposed to ongoing discrimination. Common examples of discrete acts include disciplinary actions, non-selections, denials of training, and denial of performance awards.
Ongoing Harassment or Hostile Environment Claims
The deadline for filing an allegation of harassment is viewed under the continuing violation theory. The continuing violation theory, which was adopted by the Supreme Court in National Railroad Passenger Corporation v. Morgan, states that a complaint is timely so long as one incident of harassment occurred during the 45 days prior to the filing deadline. This means a claim will be timely if there are a series of related discriminatory acts and the complainant initiates EEO contact within 45 days of one of the acts, including the final act of harassment.
Ongoing Failure to Provide Reasonable Accommodations
Similar to an allegation of ongoing harassment, an agency's failure to accommodate is a continuing violation where there is a continued need for a reasonable accommodation. In the case of Harvey G. v. Department of the Interior, the EEOC determined that a failure to accommodate claim was timely where the complainant originally requested a reasonable accommodation for his disability in December 2011, but did not initiate EEO contact until after the agency terminated him in September 2012. According to the EEOC, because the agency never granted his accommodation request, the complainant's "request for reasonable accommodation was still ongoing at the time of his termination" rendering his complaint timely under the continuing violation theory.
Constructive Discharge Claims
The U.S. Supreme Court recently addressed the issue of timeliness in reviewing an allegation of constructive discharge in the case of Green v. Brennan. A constructive discharge, also known as a constructive removal or constructive termination, is a situation where an employee is forced to quit, resign or retire. It arises in circumstances where the discrimination in the workplace results in the working conditions becoming so intolerable that a reasonable person in the employee's position would have felt compelled to resign. In Green, the Court found that in a constructive discharge case, the filing deadline is triggered by giving a definite notice of intent to resign, as opposed to the effective date of the resignation. As such, a federal employee must file a complaint of constructive discharge within 45 days of the date she files her retirement paperwork or otherwise gives notice of intent to resign.
Determining whether a complaint is timely is not always an easy task. Furthermore, each circumstance is different, and there can be exceptions to certain rules. As such, you should consider consulting an attorney about the specific facts in your case.
The document does not constitute legal advice. It is offered only for general informational and educational purposes. This information is not intended to create, and does not constitute, an attorney-client relationship with the recipient.
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