Basics of Anti-Discrimination Law for Federal Employees

Authored by: Towards Justice and the Systemic Justice Project Rapid Response Group, including Troy Brown, Luke Hinrichs, Sophia Leswing, Brandon Martinez, Noah Madoff, Holden Hopkins, and Christina White.

I think my colleagues or I have had something negative happen at work for a discriminatory reason. What do I do?
Federal employees who experience discrimination in hiring, on the job, or related to termination may have several potential ways to pursue relief, including (1) making an Equal Employment Opportunity (EEO) complaint, (2) filing an appeal before the Merit Systems Protection Board (MSPB) if they are a covered employee and experience a covered prohibited personnel practice, or (3) filing a union grievance if they are represented by a union. These procedures may be mutually exclusive for complaints based on the same facts, and there are pros and cons to each. The best place to file may depend on your situation. More information on the potential overlap between an EEO complaint and an MSPB appeal is provided below. If you are in a union, your Collective Bargaining Agreement and/or union representatives will be able to provide more information on the grievance process.

If you have questions about any of the information below, would like more information on how the laws apply to you, or would like to discuss which options are right for your individual situation, you can contact a lawyer that specializes in federal employment law.

What counts as illegal workplace discrimination under workplace EEO laws?
Illegal discrimination under workplace EEO laws means being treated unfairly or harassed at your job because of a protected characteristic. Protected characteristics include race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, disability, age (age 40 or older), genetic information, and parental status.

Actionable forms of discrimination may include experiencing a negative change to the terms of your employment because of a protected characteristic or being denied a workplace accommodation that you need because of your religious beliefs, disability, or pregnancy, childbirth, or related medical conditions.

For example, a mass layoff that targets or disproportionately affects employees of color may form the basis for an EEO complaint. So could the denial of a reasonable accommodation for an employee with a disability, such as a request for remote work or a modified schedule, unless granting the request would cause the employer undue hardship.

What counts as illegal retaliation under workplace EEO laws?
Anti-discrimination law also protects against retaliation, which means being treated unfairly or harassed because you expressed opposition to job discrimination, pursued an EEO complaint, or assisted with a job discrimination investigation or lawsuit.
You don't have to be involved in an EEO process to experience retaliation or to be protected under the law. You are protected for reasonably opposing conduct that is unlawful under an EEO law by, for example, complaining to management about discrimination against oneself or coworkers, helping a coworker file an EEO complaint, or refusing to follow a supervisor's discriminatory order. The underlying discrimination does not itself have to arise from a successful EEO complaint, but you must have a reasonable good-faith belief that the discrimination violates the law. In addition, you must raise your concerns in a reasonable way.

For example, a colleague is reprimanded for having a Pride flag in their office. If you tell a supervisor you think the reprimand was discriminatory, it could be unlawful for your supervisor to retaliate against you for expressing that belief.

Retaliation that occurs after the EEO process has already started may include retaliation for filing an EEO complaint or being a witness or otherwise participating in the EEO process, whether in administrative proceedings or in court.

When is unfair treatment bad enough to give rise to a retaliation claim?
Unlawful retaliation takes place when an employer engages in a "materially adverse" employment action. In the retaliation context, courts consider whether an action would deter a reasonable employee from complaining about discrimination or other protected action.

Materially adverse employment actions can include denying the employee promotion, benefits or hire; demoting, suspending, or firing them; threats; undesirable transfers; disparaging the employee publicly or in front of colleagues; or giving inaccurate poor performance reviews or job references. It can also include actions outside of work, such as doxxing a federal employee online or filing a false police report. In order to give rise to a legal claim, the adverse employment action has to be serious enough to cause a personal loss or harm. For example, negative feedback on work from a supervisor may not be enough to rise to the level of an adverse employment action unless it is persistent, harassing, or abusive.

To prove retaliation, you need to show that the adverse action was caused, at least in part, by a protected activity, but you don't need direct evidence of causation. If the retaliation happened soon after you engaged in protected activity that the employer knew about, that may be enough for an inference of causation.

Activity including neglecting one's duties, breaking workplace rules, poor performance or misconduct is not protected under anti-discrimination or retaliation principles.

What is per se retaliation?
Unlawful per se reprisal or retaliation ​​occurs when a management official or supervisor takes an action or makes a statement that is reasonably likely to dissuade a complainant or others from engaging in EEO protected activity. Findings of per se reprisal are automatic violations of the anti-retaliation provisions of Title VII that do not require evidence of any adverse personnel action being taken against the complainant.

For example, if a supervisor requires employees to tell them when they make an EEO complaint, tells employees that complaining about discrimination would polarize the office, warns that filing an EEO complaint could lead to fines or penalties, or otherwise indicates that pursuing an EEO complaint could have negative consequences, be ineffective, or not be worthwhile, that may qualify as per se retaliation.

Who is covered by federal anti-discrimination law?
Employees subject to federal anti-discrimination procedures include employees who work for or are applying for a job at: (1) A cabinet agency; (2) a corporation "owned or controlled" by the government, such as Amtrak and the Corporation for Public Broadcasting; (3) any of the "independent establishments," including independent agencies, listed here; (4) the United States Postal Service and the Postal Rate Commission; (5) congressional, and federal judicial roles that are subject to competitive civil service exams; or (6) the Library of Congress.

Applicants, employees (including probationary employees and employees on leave), part-time employees, seasonal employees, temporary employees, and former employees (including those subject to an RIF) can all file discrimination complaints.

You can file a discrimination complaint on behalf of another person in order to protect that person's identity.

How do I decide whether the EEO process or an MSPB appeal is right for me?
In addition to the federal EEO laws set forth above, employment discrimination on the basis of race, color, religion, sex, national origin, age (40 and over), or handicapping condition is also a prohibited personnel practice under the merit system principles. So is retaliation for opposing discrimination based on these characteristics. If you are a covered employee under the MSPB and you experience a prohibited personnel practice under merit systems rules, you can choose to bring discrimination claims either as part of the EEO complaint process or as part of an MSPB appeal, but not both. A case that could be brought either under EEO laws or before the MSPB is called a "mixed case" and is subject to special procedures, discussed in more detail below.

Note that the merit system principles also prohibit discrimination because of marital status or political affiliation. Since these latter two forms of discrimination are not prohibited under EEO law, they can only be the basis for an MSPB appeal, and not an EEO complaint.

What kinds of remedies are available under the EEO process?
Both equitable relief and compensatory damages are available under the EEO process. Equitable relief is designed to restore the complainant to the position they would be in if the violation hadn't happened, and may include reinstatement, backpay, front pay, restoration of leave and other benefits, promotion, or change in performance rating, among other remedies. Compensatory damages are monetary relief for other types of harm, including for example job search costs, moving expenses, emotional distress, injury to credit, marital strain, and other harms that may be difficult to quantify.

Basics of Filing a Federal EEO Complaint

What do I do if I want to raise claims of discrimination or retaliation under the EEO process?
The first step if you've experienced discrimination, retaliation, or per se retaliation is to decide whether to file an EEO complaint, an MSPB appeal, or a union grievance. If you have a "mixed case," meaning that both EEO and merit systems laws apply, you have certain special appeal rights, which are described below.

To initiate an EEO complaint, you must contact the Equal Employment Opportunity (EEO) counselor for your agency or organization within 45 days of the discriminatory action or of the date that you learned or reasonably should have known that the action was discriminatory. The name and contact information for the officer should be available internally. After 45 days, you may not be able to pursue relief, although there are exceptions if you were not aware of these deadlines, did not know about the discriminatory action when it occurred, or were prevented from meeting the deadline by circumstances beyond your control.

Once you contact the EEO counselor, they are required to meet with you to explain your rights and the complaint process. Generally, during your first meeting, the counselor will give you a choice between participating in EEO counseling or participating in mediation or Alternative Dispute Resolution (ADR) with your employer to attempt to resolve the issue informally. If you choose counseling, you have 30 days from initial contact with the counselor to reach a resolution, unless you agree to an extension of up to 60 days. If you choose ADR or mediation, you have 90 days from initial contact to reach a resolution.

If counseling or mediation does not resolve the issue within the permitted time, you will have a final interview with the EEO counselor and then receive a notice of right to file a complaint.

How do I file a complaint?
Once you receive notice of the right to file a complaint, you have to file the complaint with the agency's EEO office within 15 days. If you don't meet this deadline, you may find that you no longer have the right to pursue these claims. _If you don't have a final interview by the end of the 30- or 90-day counseling or ADR period, you can file a formal complaint without having the interview. This includes if you do not get any response from an EEO counselor to your initial attempt to make contact. _If this happens, you should include this information in a cover letter to the EEO office.

A complaint should include all of the following:

• Your name, address, and telephone number;
• A short description of the events that you believe were discriminatory (for example, you were terminated, demoted, harassed);
• Why you believe you were discriminated against (for example, because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, genetic information or retaliation);
• A short description of any injury you suffered;
• If you are filing a mixed case complaint; and
• Your signature (or your lawyer's signature).

Once you have filed a formal complaint, different deadlines apply depending on whether you have a mixed case complaint.

If you are not filing a mixed case complaint, your agency's EEO office has 180 days to complete its investigation and provide you with its investigative file. After you have received your investigative file or if 180 days have passed since filing a formal complaint, you can request a hearing with an Administrative Judge (AJ). An AJ is an EEOC employee that determines whether discrimination has taken place. You must send a hearing request to the EEOC field office that the agency tells you has jurisdiction over your complaint within 30 days of receiving a copy of your investigative file. This process is closed to the public. The AJ is required to reach a decision within 180 days of your request for hearing. Once the AJ has reached a decision, your agency must take final action within 40 days.

If you are filing a mixed case complaint,** **the agency must issue a final decision within 120 days of the formal complaint filing, and within 45 days after the EEO office completes its investigation. AJs do not conduct hearings on mixed case complaints.

What are my appeal rights once an agency has taken final action?
If you are not filing a mixed case complaint, you have 30 days to appeal to the EEOC. Alternatively, you can file a case in federal court within 90 days of final agency action, as long as you do not choose to undergo an internal appeals process. You can also file a case in federal court if 180 days have passed since you filed your complaint if the agency has not issued a decision on your complaint.

If you do choose to undergo the internal appeals process, you can file a case in federal court after 180 days if the EEOC has not issued a decision on the appeal, or within 90 days of the EEOC's decision on your appeal.

For mixed case complaints, you have 30 days to appeal to either the MSPB or a federal court.

What if my colleagues and I have a class claim about discrimination that affected a group of people at once?
When a group of people are discriminated against for similar reasons, they may be able to pursue an EEO claim on behalf of a "class." Class EEO claims start with the same agency counseling procedure detailed above. However, once it becomes clear that there are class issues, the complainant can go directly to an administrative judge (AJ) to decide class certification, i.e., whether there are issues core to the claims that can be decided in a single proceeding. It is important to move for class certification when it becomes apparent that there are class issues, as certification can be denied for undue delay.

Once the AJ has decided whether class certification is appropriate, the agency has 40 days to determine if class status is appropriate by issuing a final order. If a class complaint is accepted, the agency must notify the class members of the class action, and an EEOC AJ considers the case on the merits.

Can I talk publicly about the process while I'm going through it?
The answer to whether you can talk publicly (for example, to the press) about an EEO complaint while it's underway depends on the circumstances, and there is some conflicting authority. As set forth above, you are protected against retaliation for certain EEO-related activity, which may include speaking publicly about perceived discrimination. However, protected activity must be reasonable, which is a case-by-case analysis, and "disruptive" protests may not be covered.

The agency is generally required to keep the information that you provide to it during the investigation confidential.

How do I file a case in federal court?
In most cases, you can't file a case in federal court until you have followed the EEO procedures listed above. If you try to file directly in federal court, the court is likely to refuse to hear your case. The most significant exceptions to this rule are for age discrimination claims (40 and over), which can be filed directly in court after providing the agency with 30 days notice of intent to sue, and claims under the Equal Pay Act, which do not require administrative exhaustion.

Additionally, if the agency does not meet certain deadlines during the EEO process, you can file a case in federal court as described above.

What happens if a new violation occurs after the EEO process has started?
If the new violations are "like or reasonably related" to the allegations in the charge, and grow out of those allegations, they may be added to the ongoing complaint throughout the process. This includes allegations that you have experienced retaliation because of your complaint. Adding claims to your complaint may extend the deadlines the agency has to provide you with a final action.

If new violations are not reasonably related to existing allegations, you must file a separate complaint. Whether a new violation is related enough to an ongoing charge is a case-by-case question that will ultimately be decided by a judge. Factors that may be considered include whether the different violations involved the same people or activities or took place at different times. For example, failure to promote or termination may be individual acts of discrimination that must be exhausted separately. But if discrimination amounts to an ongoing hostile work environment, the incidents that make up that hostile work environment may be pursued in the same proceeding.

If a new violation occurs after the adjudication process is over, you must start the process again.