Federal employees are protected from discrimination in the workplace by federal laws such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Rehabilitation Act. These laws prohibit employers from discriminating against employees on the basis of a protected class such as race/ethnicity, color, religion, sex (including sexual orientation and gender identity), national origin, age, and disability.
If you are a federal employee and believe you have been the victim of unlawful discrimination, you have the right to seek redress in federal court by filing a lawsuit. However, before doing so, it is important to understand that you must first exhaust your administrative remedies. This means that you must first go through the proper channels within your agency to try to resolve the issue internally. Only after you have done so can you then pursue legal action in federal court.
In this blog post, we’ll discuss the specific steps you need to take to exhaust your administrative remedies so that you may proceed to filing a complaint in federal court. Please note, however, you should consult an experienced attorney who can provide guidance and advice on the specific procedures and strategies that apply to your case.
Administrative Exhaustion Steps for Federal Employees
Step #1: Pre-Complaint Counseling
The first step in this process is to contact an Equal Employment Opportunity (EEO) counselor within your agency. Importantly, you must initiate contact with the EEO counselor within 45 days of the discriminatory act or event to be eligible to then file a complaint. The EEO counselor will help you to understand your rights and options, and will try to resolve the issue(s) informally through counseling—or mediation if offered by the agency. Counseling must ordinarily be completed within 30 calendar days, and mediation within 90 calendar days. If you are unable to resolve the issue through counseling or mediation, you may file a formal EEO complaint with the agency.
Step #2: Mediation
Once you have contacted the EEO counselor, you have the option of participating in mediation to try to resolve the issue(s). Mediation is a voluntary, informal, and confidential way to try to resolve disputes without going to court. The goal of mediation is to help you and the person you believe has discriminated against you come to an agreement on how to resolve the issue. If you and the other party are able to come to an agreement through mediation, the dispute will be considered resolved and you will not be able to pursue further legal action.
Step #3: Filing Formal Complaint
If mediation is not successful, or if you choose not to participate in the mediation process, you may then file a formal EEO complaint with your agency. Note, the complaint must be filed within 15 days of the date that the mediation process was completed (or within 15 days of the date that the EEO counselor informed you of your right to file a complaint if you did not participate in mediation).
Step #4: Agency Investigation
After you have filed your EEO complaint, your agency will either accept or reject the complaint. If the agency accepts any portion of the complaint, it will conduct an internal investigation into the allegations you have made. A third-party contractor will usually be assigned to handle the investigation. The investigation will typically take several months to complete, and may involve a significant number of witness interviews, document review, and other fact-finding activities. At the end of the investigation, the assigned investigator(s) will prepare and provide you with a comprehensive report called a Report of Investigation (ROI).
Step #5: Agency Decision
The agency will review the ROI and then when issuing its final decision on your complaint. This agency will either determine that discrimination occurred and provide a remedy, or it will find that no discrimination occurred and dismiss the complaint.
Step #6: Challenging Agency Decision
If you are not satisfied with the agency’s final decision, you have two separate options.
Option #1 - File an Appeal: You may challenge the decision by filing an appeal with the Equal Employment Opportunity Commission (EEOC) within 30 days of receiving the final decision.
Option #2 – File Civil Action: Alternatively, you may skip the EEOC process altogether and file a civil action in federal court within 90 days of receiving the agency’s final decision. If you do choose to first file an appeal with the EEOC, you still have the option of filing a civil action in federal court if you’re dissatisfied with the EEOC’s decision (or if the EEOC does not make a decision within 180 days). Again, you file the complaint within 90 days of receiving the final decision by the EEOC.
Keep in my mind that several parts of the process have strict deadlines that, if missed, can prohibit you from ultimately pursuing your claim(s).
JD Howlette Law represents individuals involved in unlawful workplace discrimination, retaliation, and hostile work environment cases in both the public and private sectors. If you experienced unlawful discrimination or retaliation in the work setting that severely impacted your employment or wellbeing, contact us to speak with a knowledgeable attorney.
About the Author
Attorney Jordan D. Howlette is the founder and managing attorney of JD Howlette Law, a civil litigation and business law firm focused on delivering high-quality legal services to individuals and businesses in a timely, cost-efficient manner. Prior to establishing his practice, Jordan worked as trial attorney in the Tax Division of the U.S. Department of Justice, where he successfully litigated dozens of civil tax cases on behalf of the United States in federal courts around the country, securing millions of dollars in favorable judgments while also advocating for equitable justice. He is intimately familiar with the procedures, strategies, and processes of litigating cases from start to finish in court and with resolving multi-faceted civil disputes involving high-dollar amounts, complex statutory and regulatory provisions, and diverse parties from different jurisdictions.
DISCLAIMER: The information in this article is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from JD Howlette Law or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader should act or refrain from acting on the basis of any information included in, or accessible through, this article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.