Justice Management Division...Serving Justice - Securing Results
- Precomplaint Counseling
All Department employees and applicants for employment are entitled to present to an EEO counselor individual concerns
that they may have been subjected to discrimination or harassment because of their sexual orientation. Individuals should
be informed that their entitlement in this area derives from Departmental policy and not from Equal Employment Opportunity
Commission (EEOC) regulations which govern the processing of discrimination complaints in the Federal sector. In this
regard, counselors are responsible for advising employees of relevant distinctions between complaints based on sexual
orientation and those processed under EEOC regulations. For example, although complaints based on sexual orientation are
processed under the same administrative time frames, they cannot be the subject of either a hearing before an
Administrative Judge of the EEOC or an appeal to EEOC. When contacted by such individuals, EEO counselors are responsible
for providing them with appropriate counseling, utilizing traditional methods, including use of the Department's
Alternative Dispute Resolution Program. Counselors are also responsible for advising employees of, among other things,
their right to anonymity (unless waived) during counseling, and their right to representation throughout the complaint
process, including the counseling stage. In the event counseling is unsuccessful, complainants should be informed in
writing of an entitlement to file a formal complaint with the EEO officer, on DOJ Form 221, within the same time limit
as those filed on any of the bases covered by EEOC complaint processing regulations.
- Formal Complaints of Discrimination
Intake and Investigation. Formal complaints of discrimination or
harassment because of sexual orientation should be filed with the EEO officer. The complaint will be reviewed to assure
that it meets jurisdictional prerequisites; e.g., timeliness. The complainant will be promptly notified of the acceptance
or rejection of the formal complaint. Accepted complaints will be investigated in the same manner as any other allegation
of discrimination accepted by the Department. Recommendations to reject a formal complaint based on sexual orientation
will be addressed to the Director, EEOS who will render a final agency decision as to the dismissability of the
complaint. In the event a complaint is received which contains an allegation of discrimination based on sexual
orientation and additional bases covered by EEOC regulation, all allegations will be investigated concurrently. However,
following the investigation, those allegations not based on sexual orientation will be processed according to existing
procedures outlined in 29 CFR 1614. Reports of investigation will be provided to the Departmental Complaint Adjudication
Office and to the complainant. The EEO officer will ensure that the investigative report is complete and that management
and the complainant are given an opportunity to comment on the file and the representations contained therein.
- Complaint Adjudication Officer (CAO) Review and Decision
Following a review of the complete record, the CAO will issue a decision which will consist of findings of merits of each
issue in the complaint and, when discrimination is found, order appropriate remedies and relief. The CAO shall issue a
decision within 60 days of receipt of the record, and shall provide the individual and the component a copy of the
decision. The decision of the CAO is final and there is no entitlement for further administrative review.
- Remedies and Relief
In cases where there is a finding of discrimination, the individual shall be provided with all non-monetary equitable
remedies and back pay. Mitigation of damages may be taken into account where appropriate.
- With respect to applicants, if there is a finding of discrimination, the Department shall offer the applicant,
in writing, the position the applicant would have occupied absent discrimination or, if justified by the circumstances,
a substantially equivalent position. No such offer shall be made, however, if the record demonstrates by a
preponderance of the evidence that the applicant would not have been selected even absent the discrimination. Once an
offer is made, the applicant has 30 days to accept the offer, and failure to do so within the specified time period
will be considered a declination of the offer unless the individual can show that circumstances beyond his or her
control prevented a timely response.
- If the offer is accepted, appointment is retroactive to the date the applicant would have been hired. Back pay
shall be awarded from the date the individual would have entered on duty until the date the individual enters on duty.
Back pay shall not be awarded if the record demonstrates by a preponderance of the evidence that the individual
would not have been selected even absent discrimination.
- If the offer is declined, the individual is entitled to back pay, to the extent and under the conditions specified
above.
- With respect to employees, the Department shall provide all appropriate non-monetary relief, including placement
into new position, cancellation of unwarranted personnel action, expungement of adverse materials from Department
records, full restoration of employee benefits the individual would have received absent discrimination. The Department
shall also provide the employee with back pay, where applicable, from the date the employee would have received higher
pay but for the discrimination to the date that the employee actually began receiving higher pay. Provision of back pay
and restoration of employee benefits need not be awarded if the investigative record demonstrates, by a preponderance
of the evidence, that the employee would not have been in a position to receive higher pay and benefits even absent the
discrimination.
- There is no entitlement to front pay, interest on back pay, attorney fees, compensatory damages, or any monetary
relief other than back pay.
- In appropriate cases, CAO may recommend that the discriminating official or employee be reprimanded or otherwise
disciplined.
- Representation and Official Time
- At any stage in the processing of a complaint of discrimination or harassment because of sexual orientation,
including the counseling stage, the complainant is entitled to be accompanied, represented, and advised by a
representative of complainant's choice.
- If the complainant is a employee of the Department, he or she shall have a reasonable amount of official time, if
otherwise on duty, to prepare the complaint and to respond to agency requests for information. If the complainant is
an employee of the Department and designates another employee of the Department as representative, the representative
shall similarly have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to
respond to agency requests for information.
- The agency is not obligated to change work schedules, incur overtime costs, or pay travel expenses to facilitate
the choice of a specific representative or to allow the complainant and representative to confer.
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