Federal Employees – Discrimination

 

1. I am a federal employee and believe that I have suffered discrimination at work. Do I have a different process to follow than other employees?

2. What if I miss the 45-day deadline?

3. Once I initiate the EEO process at my agency, what happens next?

4. Can I resolve my case during the counseling period?

5. What happens if I am unable to resolve my case within the counseling period?

6. What happens once I have filed a formal complaint?

7. Will my complaint be investigated?

8. Will I have a chance to respond to the Agency’s information?

9. How long will the investigation take?

10. Will discovery be allowed?

11. How do I prove my case during the investigation?

12. What happens once discovery ends?

13. What happens at the EEO hearing?

14. What happens after the hearing is over?

15. Can I file a lawsuit if I am not happy with the EEOC’s resolution of my case?

16. Should I get a lawyer?

1. I am a federal employee and believe that I have suffered discrimination at work. Do I have a different process to follow than other employees?

Yes. When a federal employee believes she has been the subject of discrimination or retaliation, she must go through an administrative process in an attempt to resolve the situation. The first thing a federal employee must do to start this process is to contact an EEO counselor at the Agency where he or she is employed. This step is called “initiating the EEO process.” You must initiate the EEO process within 45 days of the last discriminatory or retaliatory incident.

2. What if I miss the 45-day deadline?

The law provides that the time limit is extended if you show that:

  • You were not notified of the time limits and were not otherwise aware of them;
  • You did not and reasonably should not have known that the discriminatory matter occurred; or
  • Despite due diligence you were prevented by circumstances beyond your control from contacting the counselor within the time limits.

However, you should assume that you only have 45 days, as it may be difficult to prove that these exceptions should apply to your situation.

3. Once I initiate the EEO process at my agency, what happens next?

The counselor will discuss the claims with you and may have you fill out pre-complaint paperwork. The counselor will advise you about the EEO process, but the counselor should not give legal advice, as the counselor works for the Agency.

EEO counseling generally lasts 30 days, unless you agree to extend the counseling period. During the counseling period, the counselor should advise management of your concerns and attempt to resolve them.

4. Can I resolve my case during the counseling period?

While it is possible to gain resolution informally through the counselor in the counseling stage, it does not occur very often. However, you and the Agency may agree to early Alternative Dispute Resolution (ADR) or mediation during the counseling period, which will extend the counseling period, usually to 60 or 90 days instead of 30 days.

Some cases are suitable for early ADR. Early ADR is an opportunity to resolve a complaint early on in the process, saving time, money, and resources, for all parties involved. Early ADR may also preserve the working relationship, allowing both parties to interact amicably in the future. However, both parties need to agree to ADR as it is voluntary. Early ADR is best for cases where the facts are relatively straightforward and little further investigation or discovery is necessary.

5. What happens if I am unable to resolve my case within the counseling period?

After the counseling period concludes, if resolution has not been reached, the counselor issues the employee a Notice of Right to File a Formal Complaint, along with a complaint form. The employee has 15 days from receipt of the Notice to file a formal complaint.

The complaint should not be long and detailed. The complaint should simply state the bases of discrimination (for example, sex (male), disability (asthma), and retaliation (prior EEO activity)). The complaint should also state the incidents, or issues, which you believe show discrimination or retaliation, including dates. The complaint should name the individuals alleged to be responsible for the discrimination or retaliation, also called the Responsible Management Officials (RMOs).

The complaint may also ask for the remedy requested. While the employee need not list every remedy specifically, she should state that she desires compensatory damages (up to $300,000, although an amount need not be specified), attorney fees and costs, and any other relief that would make her whole. Punitive damages are not available against the U.S. government in EEO cases.

6. What happens once I have filed a formal complaint?

After filing the formal complaint, the Agency may issue an acceptance letter, an acceptance and partial dismissal letter, or a dismissal letter, accepting or denying the claims in the formal complaint. It is important that you, as the Complainant, review this letter carefully and assure that it covers all the bases and issues you desire. If it does not, you should write a letter within the time period allotted, often 5 or 7 days, to the Agency explaining why the Agency incorrectly determined the bases and/or issues. The Agency very often will not adjust the bases or issues accordingly, but the issue will be preserved for appeal or trial. The issue can be raised again before an EEOC Administrative Judge, in the case of a partial acceptance dismissal, or the EEOC Office of Federal Operations, in the case of a complete dismissal.

7. Will my complaint be investigated?

Yes. Once the complaint has been accepted, the complaint is forwarded on to an EEO investigator, who either works directly for the Agency or works for the Agency on a contract basis. The investigator will interview witnesses and gather documentation regarding the complaint. The investigator may conduct the investigation through in-person interviews, telephonic interviews, or through written affidavits. The investigator often begins his or her investigation with your testimony as the Complainant. You will either meet with the investigator and sign off on a written affidavit or submit written responses, under oath, to the investigator’s questions. It is very important that you give a full and complete version of the facts during the investigation. However, you must also be concise and responsive to the investigator’s questions. You can also provide the investigator with relevant documentation.

Perhaps most importantly, you should tell the investigator, in writing, as part of your affidavit, what supportive witnesses the investigator should interview and to what those witnesses can testify. Finally, you should make sure you tell the investigator, in writing, through your affidavit, why you think the Agency subjected you to discrimination or retaliation, including if others outside of your protected category were treated more favorably, how, by whom, and when.

8. Will I have a chance to respond to the Agency’s information?

Maybe. After the investigator gathers information from witnesses and management, the investigator often gives you a chance to rebut management affidavits. When doing so, you should rebut each affidavit point-by-point in a clear and concise manner. You should always keep in mind that the investigation is the only thing the Administrative Judge (AJ) will have regarding your case for the majority of the case processing, until hearing. You should also keep in mind that the Agency will review the Report of Investigation (ROI) and determine its position on resolution based, in part, on the ROI. Thus, it is very important for you to tell the whole story in the ROI and list all relevant supportive witnesses and facts in a clear and concise manner.

9. How long will the investigation take?

The ROI should be issued within 180 days of when you filed the complaint. Within 30 days of when you receive the receipt or after 180 days from filing has passed, you may request a hearing with an EEOC Administrative Judge (AJ). An AJ will then be assigned to the matter and will issue an order to the parties, setting forth many important deadlines, with which the parties must comply or risk prejudicing their case.

10. Will discovery be allowed?

Yes. The AJ will give the parties the opportunity to conduct discovery, in order for each side to obtain relevant information from the other to aid the preparation of each party’s case. The discovery process includes asking the opposing party for additional information through written questions, written requests for production of documents, written requests for admissions, and depositions. Depositions usually take place at counsel’s office in the presence of a court reporter. Depositions consist of the lawyer asking the witness questions about the case. Transcripts from depositions can be used at a hearing to show a witness’s inconsistent testimony or, in certain situations, in lieu of in-person testimony by that witness. It is very important that you as the Complainant prepare for your deposition adequately, reviewing the record and making sure your answers are consistent.

In general, discovery is a very important process because it allows the parties to gain more information to assess their case and to hopefully support their arguments. Based on discovery, the parties can often better assess whether their case meets the legal burdens it will need to meet to be successful at hearing. Discovery usually lasts approximately 90 days.

11. How do I prove my case during the investigation?

It is the employee’s burden to prove by a preponderance (over 50%) of the evidence that a motivating factor of the decision maker was based on the employee’s protected classification such as race, age or disability or, in retaliation cases, because the employee participated in his/her or another employee’s EEO case. This means that after you allege in your EEO complaint that an adverse action was taken against you because of race, for example, the agency has the burden to explain why it took the action and that those reasons are legitimate, nondiscriminatory and nonretaliatory reasons. The burden then switches to the employee to prove there is direct evidence of discriminatory or retaliatory motive (such as the rare statement by the decision maker indicating bias or intent) or indirect evidence (that the reasons offered are not true, but are pretexts for discrimination or retaliation). If you cannot prove that the reasons given for the action are not true or are not credible, you cannot win your EEO claim.

12. What happens once discovery ends?

After the discovery period ends, the parties prepare for the hearing, a session with the administrative judge where both sides present evidence. The parties may also make additional attempts at resolving the case, based on what was uncovered in discovery and their resulting assessment of the case. The AJ may pressure the parties to resolve the complaint. In doing so, the AJ may discuss the merits of settlement with one party or both. The pre-hearing period may consist of motions to decide the case without a hearing (usually brought by the Agency), pre-hearing submissions (listing witnesses, expected testimony, issues to be tried, and exhibits), a pre-hearing conference with the opposing party and the judge, and perhaps a settlement conference or ADR session.

13. What happens at the EEO hearing?

The EEO hearing is conducted by the AJ, either at the EEOC field or regional office, the Agency office, or at a location designated by the AJ. At the EEO hearing both parties are given an opportunity to do a short (often five to ten minutes) opening statement.

In EEO complaints, the Complainant bears the burden of proof at all times, although the burden of persuasion shifts. Therefore you will present your witnesses first, after the opening statements. Your witnesses should probably include:

  • you, as the Complainant;
  • any co-workers who witnessed the treatment alleged and ideally who support your claims of discrimination and/or retaliation;
  • your doctors (especially important in disability cases, but also important as to damages in other cases); and,
  • your family members (to most often testify to damages, such as pain and suffering).

Hearsay is allowed in administrative proceedings.

After you call all of your witnesses, the Agency will call witnesses, likely including the named RMOs. You have a right to properly cross-examine all Agency witnesses, as the Agency has with you and your witnesses. After the Agency witnesses testify, you are given an opportunity for rebuttal. During rebuttal, you should clear up any discrepancies raised in the Agency’s testimony, either through your testimony or the testimony of witnesses.

Both parties may use physical documents or things at the hearing, as long as the parties comply with the AJ’s rules in notifying the AJ of the evidence and getting the AJ’s approval. Each party is given an opportunity to do short closing arguments or written briefs instead of oral closing arguments.

14. What happens after the hearing is over?

After the hearing, the AJ may make a bench decision, which is an oral decision on the record. Otherwise, the AJ will issue a written decision. The written decision must then be accepted or rejected by the Agency in a Final Agency Decision (FAD). After the FAD is issued, you as the Complainant have the opportunity to appeal the decision to the Equal Employment Opportunity Commission (EEOC) Office of Federal Operations. Instructions for such appeals should be contained in the FAD. For more information, please see the EEOC’s Federal EEO Complaint Processing Procedures.

15. Can I file a lawsuit if I am not happy with the EEOC’s resolution of my case?

Yes. You can file a federal court lawsuit if one of the following conditions are present:

 180 days have passed since you filed your formal EEO complaint and the EEO investigation has not been completed.

 You receive a Report of Investigation on your EEO complaint and you choose to file a lawsuit rather than request a final agency decision or request a hearing with an EEOC Administrative Judge.

 You requested an EEOC Administrative Judge hearing and the AJ issued a decision against you or the AJ issued a decision in your favor, but it was rejected by the Agency. In either case, you will have 90 days from the date of the final agency decision based on the EEOC AJ’s decision to file a lawsuit in federal court.

 If you file an appeal of the final agency decision or the EEOC AJ’s decision to the Office of Federal Operations of the EEOC, and the OFO/EEC finds against you, you will have 90 days from the date of the OFO/EECO decision to file a federal court lawsuit.

If you file a federal court lawsuit, it is a “de novo” review by the court. This means that the case starts over, no matter what the decisions may have been by the EEOC AJ or the Agency. You will have the opportunity to conduct discovery and prove your case in a jury trial.

16. Should I get a lawyer?

Getting legal advice as early as possible when you believe you have been discriminated against or retaliated against is highly recommended. A legal consultation with an attorney experienced in federal employee claims will evaluate your facts under current laws and court decisions and give you the pros and cons of your case. There are many factors that go into a case evaluation. You may be going through this EEO process once or twice in your career, whereas the agency personnel and EEO representatives do this every day. If you are not informed on how the process works and what evidence is needed, the agency and management may create a record to defend against your case and you may not understand how to find and present evidence in your favor.

Getting a consultation does not mean the attorney must represent you throughout the process or in federal court. Knowing the strengths and weaknesses of your case as early as possible can save you money and effort and can assist you in documenting and finding the evidence you need to win your EEO case or to find reason to withdraw your EEO case. Finally, if you win your case before the EEOC AJ or in federal court, your attorney’s fees will be paid by the agency. In most settlements, your fees are also paid by the agency. Many attorneys will represent federal employees on a contingent fee basis if there are sufficient facts to support your EEO claims.

 

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer

Employment and Discrimination: Exploring the Climate of Workplace Discrimination from 1997 to 2018

HUMAN RESOURCES
ARTICLE
08/01/2019
Source: Paychex

Across the U.S., workplace discrimination on the basis of race, gender, religion, pregnancy, and disability is illegal. Of course, while all employers must follow federal laws regarding employment discrimination, specific state laws pertaining to hiring and employment prejudices can vary greatly from region to region.

As an example, 48 states have drafted equal pay laws. While Alabama and Mississippi have passed no such legislation, Georgia’s law only applies to businesses with 10 or more employees. Despite both state and federal laws addressing discrimination based on race, studies show hiring bias against black and Hispanic employees hasn’t improved at all in over two decades.

For a better understanding of employment discrimination in America today, we analyzed 21 years of data from the Equal Employment Opportunity Commission (EEOC) Enforcement & Litigation Statistics.Read on as we break down the more than 1.8 million complaints filed with the EEOC since 1997.

Concerns in the workplace

From 1997 to 2018 (the last year data was available), there were 1,889,631 discrimination complaints filed with the EEOC. In 2017, a majority of these complaints were categorized as retaliation (49%), race (34%), disability (32%), or sex (over 30%).

Sixty-four percent were officially dismissed as having found no issue after investigation, and around 18% were closed for administrative reasons. According to the EEOC, cases closed for administrative reasons may include the charging party deciding not to pursue their case, lack of communication, or a withdrawal request from the charging party.

Discrimination rates, by state

A total of 916,623 discrimination cases were filed with the EEOC between 2009 and 2018. Of these cases, the highest rates of discrimination complaints occurred in Southern states. Complaints of discrimination and bias in the workplace were highest in Alabama (62.2 complaints per 100,000 residents), Mississippi (60.8), Arkansas (51.7), and Georgia (50.3).

While race claims are often the most commonly filed with the EEOC, they have the lowest percentage of success (15%) in terms of legal action or reaching a settlement.

Discrimination complaints between 2009 and 2018 were the lowest in Maine (2.5), Montana (2.6), New Hampshire (4.0), Idaho (4.3), and Nebraska (4.3).

Descriptions according to the EEOC

As we take a more detailed look at employment discrimination in America, it’s important to understand the different types of discrimination people encounter. For age discrimination, color and race discrimination, equal pay discrimination, national origin discrimination, religious discrimination, and sex discrimination, we’ve included descriptions according to the U.S. Equal Employment Opportunity Commission.

Now, we’ll explore each type of discrimination more closely, including which states have the highest percentage of complaints.

Statewide discrimination complaints

Alabama had the highest rate of employment discrimination complaints per capita, but it also had the most complaints regarding color and race (8.3), sex (9.7), and equal pay discrimination (1.1).

Even though pay discrimination based on sex has been illegal since the ’60s, critics argue it can be difficult to prove under normal circumstances. In Alabama, no state law protects women from pay inequity.

New Mexico nearly tied with Alabama for the most complaints centered on equal pay discrimination and led the country (along with Alabama) from 2009 to 2018 for age and national origin discrimination complaints. In 2016, there were 20,857 claims of age discrimination filed across the country, making it the ninth-consecutive year where employees alleged more than 20,000 cases of ageism in the U.S. workforce.

Making progress

While some states saw a decline in the number of discrimination complaints filed with the EEOC between 2009 and 2018, others saw dramatic increases. Despite a decrease in the number of color and race discrimination complaints in states like Minnesota (nearly 69%) and Oregon (57%), increases were much more substantial in states including Utah (almost 104%) and Connecticut (56%).

Similarly, the number of sex discrimination complaints between 2009 and 2018 more than doubled in Nebraska, followed by a nearly 109% increase in Massachusetts and 80% in Utah. Utah also ranked in the top five for the most complaints regarding age discrimination, color and race discrimination, national origin discrimination, and sex discrimination. Roughly 4 in 10 working women say they’ve experienced some form of discrimination at work due to their gender, including those who earn less than men for the same job, those who are treated as incompetent, and those who experience repeated slights in the workplace.

Changes in workplace discrimination

You might think with federal laws like the Equal Pay Act of 1963 or the Age Discrimination in Employment Act (ADEA), the rules surrounding workplace discrimination would be cut and dry. However, employees should be cognizant of how discrimination still exists in their industry. Shady hiring practices, unfair promotional structures, unequal pay, and retaliatory behavior are all signs of discrimination.

Between 1997 and 2018, there were over 710,500 discrimination complaints filed to the EEOC for one category: color and race. While the total number of cases dipped slightly from 2002 to 2005, there was an intense spike in color and race discrimination charges in 2006 that continued to climb into 2010. The total number of color and race discrimination charges remains higher than any other category of complaints.

Sex (570,360), age (422,866), and national origin discrimination complaints (198,689) also accounted for the highest number of discriminatory claims filed with the EEOC between 1997 and 2018.

Frequent cases of discrimination

Analysts suggest there are many reasons why the total number of discrimination claims continues to rise. From heightened awareness of what’s qualified as illegal behavior to increased coverage in the news of what discrimination looks like, more people may feel compelled to bring their concerns to the EEOC.

People reporting certain forms of workplace discrimination may experience similar issues. Among religious discrimination claims, reasonable accommodation was cited seven times more frequently than in any other claim. In 2019, a jury awarded one employee over $21 million in damages after determining that her employer, a Miami hotel, violated her religious rights by demanding she work on Sundays and firing her for noncompliance. After filing her complaint with the EEOC, the organization issued the employee a “right to sue” notice, thus supporting her legal claim against the company.

Discrimination based on an employee’s age can take many forms. Discrimination centered on age had the highest percentage of discriminatory firings according to the EEOC. Studies suggest 61% of employees over the age of 45 have either personally experienced or seen discrimination at work, and that can include the way they’re treated by existing employers, when looking for new work, and when terminated from existing employment.

Final resolutions

Discrimination in the workplace may not be uncommon, but it can be very difficult to prove. According to the AARP, nearly 2 in 3 employees between the ages of 55 and 65 cited age as a barrier to employment. Despite the high volume of complaints surrounding ageism, just 16% of cases focused on age discrimination merited a resolution for the charging party. At most, 22% of cases focused on equal pay led to a resolution, and fewer than 16% of cases that focused on color and race experienced similar results.

Between 1997 and 2018, the average case of discrimination related to equal pay compensated the charging party nearly $31,000. Combined, equal pay cases resulted in $157 million in monetary benefits. Both religion and color and race discrimination cases averaged the lowest overall monetary benefits — $13,000 and $14,900, respectively.

Protecting your employees

The U.S. Department of Labor enforces roughly 180 laws designed to safeguard workers from discrimination and bias, and the U.S. Equal Employment Opportunity Commission facilitates additional layers of protection for the same purpose. Still, despite federal and state laws geared toward illuminating discrimination in the workplace, more than 1.8 million cases have been filed with the EEOC in the last two decades. While a majority of charges brought to the EEOC were either unfounded or closed for administrative reasons, there’s been no major decrease in the total number of discrimination complaints reported to the EEOC since 1997.

At Paychex, we believe in helping businesses establish HR management services for where they are and where they want to go. With highly trained HR professionals, Paychex helps businesses just like yours streamline their HR services with powerful technology and expert support. With one platform, you’ll better understand your obligations as an employer, and your employees with have access to their payroll, benefits, and retirement directly from their mobile devices. Ready to learn more?Visit us at Paychex.com to get started.

Methodology

The data presented in this project are from the Equal Employment Opportunity Commission (EEOC) Enforcement & Litigation Statistics. The most recent year of the data is 2018. It was accessed in July of 2019 for use in this project. The categories explored were age, color, race, equal pay, national origin, religion, and sex discrimination. Age discrimination reports fall under the Age Discrimination in Employment Act (ADEA) category in the original data. Equal pay discrimination falls under the Equal Pay Act (EPA) category in the original data.

The total number of cases was calculated using the “Charge Statistics (Charges filed with EEOC) FY 1997 Through FY 2018”data tables. The figure calculated only reflects the total number of individual complaints filed. It is possible for one individual to report multiple types of discrimination, and those multiple reports are not included in the total figure: 1,889,631.

For the graphic titled “Outcomes of Investigations,”the categories were altered for readability. These were the changes:

  • “Investigation found no issue” represents the EEOC’s “No Reasonable Cause”
  • “Closed for administrative reasons” represents the EEOC’s “Administrative Closures”
  • “Settlement” represents the EEOC’s “Settlements”
  • “Complaint withdrawn by charging party” represents the EEOC’s “Withdrawals w/Benefits”
  • “Considered for litigation” represents the EEOC’s “Unsuccessful Conciliations”
  • “Informal resolution reached between parties” represents the EEOC’s “Successful Conciliations”

Per-capita calculations per state were calculated using American census population data for 2018. The calculation is as follows: (Total number of discrimination reports per state/State population)*100,000.

Percentage change calculations for the graphic titled “Changes in Discrimination Complaints Over Time”are as follows: (Total number of complaints in 2018 – Total number of complaints in 2009)/Total number of complaints in 2009.

Average payout per charge calculations were done as follows: Total monetary benefits/Total number of merit resolutions per type of discrimination.

For graphics exploring the data by state, the available years were 2009 to 2018. For all other graphics, the data encompass 1997 to 2018.

The data were not statistically tested. Future research could also explore the current climate of disability, genetics, pregnancy, or retaliation discrimination complaints in the workplace — topics that were not explored in this analysis.

Sources

Fair use statement

For millions of people across the country, workplace discrimination is a real concern. The more people understand the laws, the more likely they are to report bias and discrimination. Help share the results of this study with your readers for any noncommercial use with the inclusion of a link back to this page.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer