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:
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.
Last Updated: May 5, 2009