Practice before the Equal Employment Opportunity Commission (EEOC) in the federal sector is complicated. Here are some frequently asked questions and answers regarding the federal sector EEOC process.
Do federal employees file a charge with the EEOC like non-federal employees?
No. The EEO complaint and EEOC hearing processes for federal employees are very different from the private sector complaint process.
Federal employees do not file a charge with the EEOC. Instead, they contact their Agency’s EEO Counselor to raise a possible complaint of discrimination, harassment, or retaliation under the EEO laws. This informal (or pre-complaint) process may result in a notice of right to file a formal complaint (NRF) with the Agency.
The formal complaint process usually leads to a decision: whether to have the Agency itself issue a decision on the claim (a final agency decision, or “FAD”), or to request that the claim be heard by an Administrative Judge (“AJ”) of the EEOC.
How long does the federal EEO process take?
This is a difficult question to answer. The timeline depends on the Agency, the complexity of the case, the stage the case is disposed of (i.e. hearing, settlement, summary judgment, etc.). The following are merely estimates.
- Some cases settle within a month or two of beginning the pre-complaint process. Some settle years later.
- The informal complaint process typically takes 1-3 months.
- The investigation stage usually takes approximately 180 days, or 5 months.
- It typically takes a few months after completion of the investigation for the case to be assigned to an EEOC AJ and for that AJ to hold an initial status conference (“ISC”).
- The deadline for summary judgment is typically 2-5 months after the ISC.
- Some AJs can take an incredibly long time to rule on pending motions for summary judgment. I have seen motions pending before an AJ’s ruling for more than a year. Other times, the AJ rules within 2-3 months.
- If the case survives summary judgment, AJs typically schedule a hearing within 2-3 months of the order denying summary judgment.
- When in doubt: Estimate the case will be longer, not shorter. Furloughs, budget cuts, and repeated government shutdowns have created delays in many federal employment litigation matters.
What is summary judgment?
A motion for summary judgment is a formal request to the AJ to resolve the case without a hearing.
Summary judgment is appropriate if (and only if) the following conditions are met: (1) The record is complete, meaning there is sufficient evidence for the AJ to render a decision; (2) There are no genuine disputes about the material facts of the case.
In other words: An AJ may issue summary judgment if they conclude: “We do not need to hold a hearing because I have all of the facts that I need to render a ruling on this case. There is nothing else I need to know to make my decision.”
Summary judgment usually (but not always) occurs after the end of discovery. Either party may request summary judgment. Agencies request summary judgment in the vast majority of cases.
Many complaints are killed in summary judgment.
On the other hand, defeating the Agency’s motion for summary judgment means the case will go to a hearing. This often increases a complainant’s leverage in settlement; Agencies are usually more willing to settle a case if they know the alternative is putting Agency managers on the stand to testify.
For more information, consult the official EEOC page on summary judgment: https://www.eeoc.gov/guide-summary-judgment-unrepresented-complainants
What is the average case worth?
There is no such thing as an average case. The only way to estimate what a case might be worth is to consult with an attorney. No person can tell you what an “average” settlement is without knowing the specific details of your case. Attorneys can often estimate the worth of a case based on the facts, the record of damages, their prior experience in dealing with the EEOC or a particular AJ, and their knowledge of the history of damages awards as recorded in published decisions. Even then, those are merely estimations.
What is the maximum amount of damages allowed in a federal EEOC case?
Compensatory damages for federal sector cases in the EEOC are generally capped at $300,000.
Punitive damages are not available against the federal government.
Should I accept a FAD instead of requesting an EEOC hearing?
It depends on the circumstances of your case.
Generally, we recommend requesting an EEOC hearing. The EEOC hearing process offers complainants more opportunities to seek discovery and put on evidence than the FAD process.
Do Agencies offer periods of administrative leave similar to the Deferred Resignation Program (DRP) in settlement?
I have encountered this in my practice. We have secured settlements providing for periods of paid administrative leave similar to the DRP. However, it is difficult to assess how widespread this is or whether it will become a fixture of federal sector EEOC settlements in the future.
Should I be worried about retaliation if I file an EEO complaint against my federal Agency employer?
By law, federal Agencies, managers, and supervisors may not retaliate against you for filing an EEO complaint.
Unfortunately, retaliation still occurs. Hiring a lawyer may make the Agency more cautious about taking adverse actions against you (for example, placing you on a PIP or removing you).
Does hiring an attorney make a difference?
It can make an enormous difference in your case.
When the Agency’s attorney briefs their supervising attorney on your case, the supervising attorney will almost always lead with this question: “Is the complainant represented?”
In American law, courts and agencies make their rulings based on prior rulings, called “precedent.” These precedential decisions are often not publicly available. They are paywalled behind legal databases that cost thousands of dollars to access. That means that pro se complainants are expected to analyze and cite precedential decisions they cannot even see. The EEOC does provide helpful opinion digests and posts appellate decisions on its website here, but the search function is much more limited than the functions available to lawyers, including the Agency’s attorney.
Trial litigation is an art and a science. It takes years to learn and a lifetime to master. You are going up against an Agency attorney with years of education and experience. They live and breathe employment law. They have all of the Agency’s financial resources at their back. A pro se complainant will almost never be able to out-litigate an Agency attorney.
The facts of the case matter more than the attorneys trying it. But a good lawyer can make all the difference, and a bad lawyer (or no lawyer) can turn a good case into a bad case.
Are Administrative Judges biased for or against complainants?
In my experience, no. All AJs are different. Some are perceived to favor complainants. Some are perceived to favor Agencies.
But I have found that most are simply trying to do their job in an impartial and unbiased way.