HHS FACT SHEET- REVISED EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT PROCESSING
REGULATIONS
The Department of Health and Human Services Equal Employment Opportunity (EEO)
complaint system covers individual and class complaints of discrimination based
on race, color, national origin, religion, sex, age (40 years of age and
older), physical or mental disability*, and reprisal for previous EEO activity.
As an employee, former employee, or applicant for employment, you may be accompanied,
represented, and advised by a representative of your choice at any stage
in processing your complaint, including pre-complaint counseling, provided the
choice of a representative does not involve a conflict of interest and/or position.
* A disabled person is defined as one who has a physical or mental impairment
which substantially limits one or more major life activities, has a record
of impairment, or is regarded as having such an impairment.
You, your representative, and your witnesses shall be free from restraint,
intimidation, interference, coercion, discrimination, and reprisal in
the presentation and processing of your complaint. This includes the pre-complaint
counseling phase, and any time thereafter.
If you have a representative, it is your responsibility to provide the
agency's EEO office and the Equal Employment Opportunity Commission (EEOC) with
his/her name, address, and telephone number, and of any changes in your representation.
You must contact an EEO counselor within 45 days of the alleged discriminatory
action.
During the pre-complaint phase, you are also entitled to confidentiality
unless you waive that right. If you file a formal complaint, you no longer have
the right to anonymity.
You will be provided a written statement of your rights and responsibilities
within the complaint process by the EEO counselor.
Because the revised regulations at 29 CFR 1614 require the availability of
an alternative dispute resolution (ADR) process during the pre-complaint
and formal phases of the complaint process, you must decide whether to proceed
with traditional EEO counseling, or elect an ADR procedure.
If you choose counseling, attempts will be made to resolve the case
within 30 days. If the case is not informally resolved, the counselor will issue
a notice terminating counseling and instructing you on how and where to file
a formal EEO complaint, unless you agree in writing to extend the time frame
an additional 60 days.
Should you choose the ADR process instead, you and the agency will have 90
days within which to resolve the issues you have raised. If a settlement
is reached, the terms will be incorporated into a resolution agreement
for signature by you and an appropriate agency official.
If ADR is unsuccessful, you will be issued a notice terminating ADR and instructing
you on how and where to file a formal EEO complaint. The counselor will prepare
a report of counseling/ADR activity and forward copies to you or your representative
and to the agency.
You may file a formal complaint of discrimination within 15 days of
receipt of the EEO counselor's notice of final interview. [Where a collective
bargaining agreement covers the alleged discrimination, you must choose between
the EEO complaint procedure and the negotiated grievance procedure.]
The complaint must be in writing and signed by you, detailing as much specific
information as possible. If you are represented by an attorney, s/he may file
the complaint on your behalf. The written complaint must be delivered or mailed
to the agency office outlined in your notice of final interview.
The effective date of filing the complaint is the date on which it is
received in the agency EEO office named in your notice of final interview.
The revised regulations now permit you to amend your complaint in writing
with additional issues that are "like or related" to the issues in
the original complaint. You may amend the complaint at any time prior to the
conclusion of the investigation, or, after requesting a hearing before an EEOC
administrative judge (AJ). Any request to amend a complaint during the hearing
process must be made in the form of a "motion to amend" and presented
directly to the AJ and send a copy to the agency. In either case, no additional
EEO counseling is required.
Receipt of your complaint and any amendments will be acknowledged in writing.
The agency will identify the issues that will be accepted for investigation,
as well as those which may need clarification before an acceptance or dismissal
decision can be made.
The agency contracts with a private firm to investigate your complaint, and
you or your representative, and the agency will receive a copy of the report
of investigation (ROI) once the investigation is complete. You will also receive
a notice indicating that you must make an election within 30 days of
receipt of the notice.
You may either make a written request for a final agency decision based upon
the ROI, or request a hearing and a decision from an EEOC AJ, in which case
you must submit your written request for a hearing directly to the EEOC office
identified in the election letter, and send a copy of the request to the agency.
If you elect to receive a final agency decision on the record, or if you do
not make an election, the agency will issue a decision on the record within
60 days of receipt of your election, or 60 days from the end of the 30-day
election period.
If the agency dismisses all or part of a complaint, or you disagree with other
aspects of the agency's decision, you may file an appeal with the EEOC
Office of Federal Operations (OFO) within 30 days after receipt of the
agency dismissal or final agency action. You then have an additional 30 days
to file a statement or brief in support of the appeal. [If the complaint
is on a matter appealable to the Merit Systems Protection Board (MSPB), you
may appeal to the MSPB within 20 days or go to US District Court within
30 days of receipt of the agency dismissal or final agency action.] If the
agency will not fully implement the AJ's decision, it must file an appeal with
the EEOC within 40 days of receipt of the AJ's decision, and file a brief within
the following 20 days. Opposition briefs must be served on the opposing
party within 30 days of receipt of the brief in support of the appeal,
or if no brief is filed, within 60 days of receipt of the appeal.
You may file a civil action under Title VII, the Age Discrimination in Employment
Act, and the Rehabilitation Act in the appropriate US District Court under the
following circumstances:
- within 90 days of receipt of the final agency action if no appeal has been
filed;
- within 180 days from the date of filing a complaint if an appeal has not
been filed and a final agency action has not been taken;
- within 90 days of receipt of the EEOC's final decision on an appeal; or
- after 180 days from the date of filing an appeal with the EEOC if there
has been no final decision by the EEOC.
If you file an EEO complaint based on age alone, you must exhaust the administrative
processing of your complaint before filing a civil action.
Right to file a civil action under the Equal Pay Act
If you believe you have been subjected to prohibited wage discrimination based
upon your gender, you may file a civil action in the appropriate US District
Court within two years of the date of the alleged violation, or three years
if the violation is willful, regardless of whether you pursued any administrative
complaint processing. The administrative processing and appeal cannot include
attorney fees, should you prevail. Recovery of back wages is limited to two
years prior to the date of filing suit, or three years if the violation is deemed
willful. Liquidated damages in an equal amount to the back wages may also be
awarded.
If you elect to initially file a civil action, you must, within 180 calendar
days of the alleged discriminatory act, give the EEOC at least 30 calendar days
prior notice of your intent to sue before filing the civil action. In either
event, a civil action must be filed within six years of the occurrence of the
alleged discriminatory act. The administrative processing and appeal cannot
include attorney fees, should you prevail.
Once a civil action has been filed, administrative processing of the complaint
is terminated by the agency and, where applicable, the EEOC.
If you elect to file a civil action under Title VII or the Rehabilitation Act,
you may appeal to the US District Court for appointment of an attorney
to represent you in the court proceeding. The Court may appoint an attorney
to represent you and may permit commencement of the civil action without payment
of fees, costs, or security.
NOTICE TO MEMBERS OF COLLECTIVE BARGAINING UNITS
Members of collective bargaining units may be entitled to elect between filing
a formal EEO complaint and filing a grievance. If the agreement with your union
covers equal employment and discrimination matters, you may elect to file a
formal EEO complaint of discrimination under 29 Code of Federal Regulations
(CFR) Part 1614 or to file a grievance in writing, under your contract concerning
a grievable matter. You may not do both. Whichever one you file first will constitute
your election.
To exercise your election, you must obtain pre-complaint EEO counseling just
as you would in order to file a formal EEO complaint of discrimination. You
cannot be denied pre-complaint EEO counseling. Exercise of the election usually
occurs within 15 calendar days after the close of EEO counseling. Thus, obtaining
EEO counseling will not indicate your election of the EEO complaint process
instead of the grievance process.
However, if the contract with your union allows, you may omit pre-compliant
EEO counseling and file your grievance in writing without EEO counseling; or,
you may file your grievance in writing while EEO counseling is in progress.
In either case, filing your grievance in writing will constitute your irrevocable
election to give up the right to file an EEO compliant of discrimination on
the same matter, whether or not you allege a protected discriminatory basis.
The election to file a formal EEO complaint or grievance, as described, applies
only to bargaining unit members; it does not apply to employees who must file
grievances under 5 CFR Part 771 and who are not bargaining unit employees.
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