If you are a federal employee and you have experienced discrimination or harassment in the workplace, seeking accountability may involve filing an Equal Employment Opportunity (EEO) complaint. This is a highly structured process that is subject to strict deadlines—and, if you don’t follow the process correctly, this alone could prevent you from securing the remedies you deserve.
Before you can file a formal complaint with the U.S. Equal Employment Opportunity Commission (EEOC), you must first contact your agency’s EEO Counselor. The EEOC makes this clear, stating, “[t]he first step is to contact an EEO Counselor at the agency where you work or where you applied for a job, and, “[g]enerally you must contact the EEO Counselor within 45 days from the day the discrimination [or harassment] occurred.”
Federal Employees Can Typically Choose Between EEO Counseling or Alternative Dispute Resolution (ADR)
Once you contact your federal agency’s EEO Counselor, you will typically be given a choice—you can either: (i) participate in the EEO counseling process; or (ii) pursue your discrimination or harassment claim in alternative dispute resolution (ADR).
1. The EEO Counseling Process for Federal Employee Discrimination and Harassment Claims
If you choose the EEO counseling process, the EEO Counselor will work with you and the appropriate personnel within your agency to attempt to find a mutually agreeable resolution. As the EEOC explains, the EEO Counselor’s role is to serve as a neutral facilitator. The EEO Counselor should provide you with information about your legal rights, gather information about your complaint, and then work to facilitate a resolution that respects your rights under federal law.
Initially, the EEO Counselor will have up to 30 days to try to achieve a resolution. However, this can be extended to up to 90 days with your consent. If it is clear within 30 days that your federal agency will not agree to a satisfactory resolution, or if you do not consent to a 60-day extension, then the EEO Counselor must issue a written notice informing you that you have 15 days to file a formal complaint with the EEOC.
2. Alternative Dispute Resolution (ADR) for Federal Employee Discrimination and Harassment Claims
Alternative dispute resolution (ADR) is more formal than the EEO counseling process, but still far less formal than asserting your legal rights in court. Typically, if you request ADR, your EEO complaint will proceed to mediation.
In mediation, the parties (i.e., you and your federal agency) work with a neutral third-party mediator to try to find a mutually agreeable path forward. In this way, mediation is similar to the EEO counseling process. As the EEOC also explains:
“A mediator is trained to help people who have disagreements talk to each other. The mediator does not decide who is right or wrong or issue a decision. Instead, the mediator helps the parties work out their own solutions to their dispute.”
One of the main differences between the EEO counseling process and the ADR process is that a mediator will have specific training in conflict resolution—and specifically the mediation process itself—whereas an EEO Counselor typically serves in more of an administrative role. As a result, pursuing mediation can offer opportunities for resolution that might not come to light through the EEO counseling process.
Similar to the EEO counseling process, ADR is not guaranteed to produce a satisfactory outcome, and neither you nor your federal agency is required to agree to a resolution during the process. If ADR does not lead to a satisfactory resolution within 90 days, the process will end, and the EEO Counselor will issue a written notice informing you that you have 15 days to file a formal complaint with the EEOC.
Which Option Should You Choose?
With all of this in mind, which option should you choose? Ultimately, the answer to this question depends on the specific circumstances of your case. While pursuing ADR can offer additional benefits as noted above, the EEO counseling process is (or can be) shorter—and this may be a relevant consideration if you do not expect to be able to achieve a mutually agreeable resolution through the process.
When you hire a federal employment attorney to represent you, your attorney will be able to help you make an informed decision about how best to proceed. Your attorney can also help ensure that you meet all applicable deadlines (as long as you schedule a free initial consultation in time), and your attorney can represent you throughout the process. If you are not able to obtain a satisfactory resolution through the EEO counseling process or mediation, your attorney can assist you with pursuing your next steps as well.
What if the EEO Counseling Process or ADR Isn’t Successful?
If you are not satisfied with what your federal agency is willing to offer during the EEO counseling process or in mediation, your next step is to file a formal complaint with the EEOC. As noted above, you will have 15 days to file your complaint once you receive a written notice from your agency’s EEO Counselor.
Once you file a formal complaint, your agency will have 180 days to conduct a formal investigation, and, at the end of this process, you will be given the option to request either an agency decision or a formal hearing with an administrative law judge (ALJ). Here, too, there are potential benefits and drawbacks to both options. Either way, you will have the ability to file a Request for Reconsideration with the EEOC’s Office of Federal Operations if necessary, and if you still are not satisfied with the outcome of your case, then you can fight for your rights in federal court. For more information, you can read: Filing an EEO Complaint: What Federal Employees Need to Know.
Discuss Your Legal Options with an Experienced Federal Employment Attorney
If you need more information about filing a discrimination or harassment claim as a federal employee (or former federal employee), we encourage you to schedule a free initial consultation with Bell Law Group. Call 516-280-3008 or contact us confidentially online to speak with an experienced federal employment attorney in confidence.
