Filing Title VII Complaints of Discrimination in Federal Agencies January 5, 2012
Agencies have learned how to get around the civil rights laws and regulations by rejecting complaints based on various failures of the aggrieved or complainant, dragging the process out for years until a complainant gives up or is exhausted, or hiring civil rights employees who don't have a clue on what they are doing. I will be going over the process with the disclaimer that you should follow the advice of your attorney and get an attorney when it is appropriate and necessary. Generally, aggrieved employees (those who enter the informal part of the process to attempt resolution) do not hire a lawyer immediately, but do so when the situation escalates or they file a formal complaint (15 days after the informal process ends when they receive a Notice of Right to File a Formal Complaint from the EEO counselor).
The regulations issued by the Equal Employment Opportunity Commission (EEOC) are readily available on the EEOC website and printing 29 Code of Federal Regulations (CFR) 1614 will be very helpful to you. We will go over each section and I will be discussing with you each section with information I have gathered over 30 years as a civil rights professional. We will start with the first part, which is the policy.
Title 29: Labor PART 1614—FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY
Subpart A—Agency
Program To Promote Equal Employment
Opportunity
§ 1614.101 General policy.
(a) It is the policy of the Government of the United States to provide equal opportunity in employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, age, disability, or genetic information and to promote the full realization of equal employment opportunity through a continuing affirmative program in each agency.
(b) No person shall be subject to retaliation for opposing any practice made unlawful by title VII of the Civil Rights Act (title VII) (42 U.S.C. 2000e et seq. ), the Age Discrimination in Employment Act (ADEA) (29 U.S.C. 621 et seq. ), the Equal Pay Act (29 U.S.C. 206(d)), the Rehabilitation Act (29 U.S.C. 791 et seq. ), or the Genetic Information Nondiscrimination Act (GINA) (42 U.S.C.
2000ff et seq. ) or for participating in any stage of administrative or judicial proceedings under those statutes. [74 FR 63984, Dec. 7, 2009]
A. The first thing to notice is the prohibition of discrimination in employment is on the following BASES:
1. Race (previously a narrowly-defined classification system based on physical or phenotypic characteristics as Caucasoid, Mongoloid and Negroid, but changed to include ethic differences);
2. Color (shades of color);
3. Religion (religious beliefs);
4. Sex or Gender (male or female);
5. National Origin (particular country, part of the world, ethnic background or accent);
6. Age (over 40 years old);
7. Disability (Qualified);
8. Genetic Information (Disclosure); and
9. Reprisal (engaging in protected activity).
Each agency also has a responsibility to take a proactive approach by promoting an equal employment opportunity (EEO) or continuing affirmative program. Section (b) covers retaliation, which may occur after an individual enters or participates in the EEO process, or opposes any practice that is unlawful under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act (ADEA), the Equal Pay Act, the Rehabilitation Act, or the Genetic Information Nondiscrimination Act.
The GINA is the latest law passed on the nondiscrimination of individuals due to the disclosure or knowledge of their genetic information. Civil rights officials are also generally covered under the Reprisal basis if and when they take opposing views from management for unlawful practices under the laws and regulations. The number of complaints filed against agencies based on Reprisal show retaliatory animus towards complainants and impact on the overall civil rights program. Agency's retaliatory actions against employees who file complaints, testify as witnesses, or taking opposing views, is a means of having a chilling impact on the EEO program and process, that is often intentional. Reprisal is the basis, while the retaliatory actions taken are covered as claims.
Discrimination or harassment because of an individual's Sexual Orientation is prohibited by Presidential Executive Order and agency's must have a process under which an employee or applicant can file a complaint. Agencies have developed procedures so that aggrieved employees can file sexual orientation complaints under the agency administrative or union grievance procedures, some using the Title VII process up to and including an Agency Final Agency Decision (FAD). No further appeal rights are available as with other bases for complaints under the laws, which the Gay, Lesbian, Bisexual and Transgender (GLBT) community is trying to get changed so that these complaints are covered by law with all rights available.
B. The second part of the complaint to consider is the CLAIM(S):
Claims were previously called issues or allegations and are those actions taken, which the aggrieved alleges occurred because of the basis or bases (multiple). For example, if you received a Fully Successful (FS) Performance Appraisal (instead of Highly Successful or Exceptional) and believed that it was because of your Race, Gender, and National Origin, you would have to contact an EEO counselor (or agency designated official) within 45 days of when you learned about or received the FS Performance Appraisal. By turning it into a sentence, you can formulate your claim as follows: "I believe that I was discriminated against based on my Race (Black), National Origin (African American), and Sex (Female) when I was given a 2011 Fully Successful Performance Rating (Claim). If you have filed a complaint on
Continuous Harassment, then the FS Performance Appraisal can be part of the continuing violation (outside the 45-day mandatory timeframe) as long as the last incident
of harassment was within the 45 days of contacting a counselor. After that initial formulation, you will then have to clearly be able to show that you received the FS because of discrimination on each of the bases you named. Were there "similarly situated" employees who were given exceptional ratings, while you were treated differently because of your race, national origin and sex?
Program To Promote Equal Employment
Opportunity
§ 1614.101 General policy.
(a) It is the policy of the Government of the United States to provide equal opportunity in employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, age, disability, or genetic information and to promote the full realization of equal employment opportunity through a continuing affirmative program in each agency.
(b) No person shall be subject to retaliation for opposing any practice made unlawful by title VII of the Civil Rights Act (title VII) (42 U.S.C. 2000e et seq. ), the Age Discrimination in Employment Act (ADEA) (29 U.S.C. 621 et seq. ), the Equal Pay Act (29 U.S.C. 206(d)), the Rehabilitation Act (29 U.S.C. 791 et seq. ), or the Genetic Information Nondiscrimination Act (GINA) (42 U.S.C.
2000ff et seq. ) or for participating in any stage of administrative or judicial proceedings under those statutes. [74 FR 63984, Dec. 7, 2009]
A. The first thing to notice is the prohibition of discrimination in employment is on the following BASES:
1. Race (previously a narrowly-defined classification system based on physical or phenotypic characteristics as Caucasoid, Mongoloid and Negroid, but changed to include ethic differences);
2. Color (shades of color);
3. Religion (religious beliefs);
4. Sex or Gender (male or female);
5. National Origin (particular country, part of the world, ethnic background or accent);
6. Age (over 40 years old);
7. Disability (Qualified);
8. Genetic Information (Disclosure); and
9. Reprisal (engaging in protected activity).
Each agency also has a responsibility to take a proactive approach by promoting an equal employment opportunity (EEO) or continuing affirmative program. Section (b) covers retaliation, which may occur after an individual enters or participates in the EEO process, or opposes any practice that is unlawful under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act (ADEA), the Equal Pay Act, the Rehabilitation Act, or the Genetic Information Nondiscrimination Act.
The GINA is the latest law passed on the nondiscrimination of individuals due to the disclosure or knowledge of their genetic information. Civil rights officials are also generally covered under the Reprisal basis if and when they take opposing views from management for unlawful practices under the laws and regulations. The number of complaints filed against agencies based on Reprisal show retaliatory animus towards complainants and impact on the overall civil rights program. Agency's retaliatory actions against employees who file complaints, testify as witnesses, or taking opposing views, is a means of having a chilling impact on the EEO program and process, that is often intentional. Reprisal is the basis, while the retaliatory actions taken are covered as claims.
Discrimination or harassment because of an individual's Sexual Orientation is prohibited by Presidential Executive Order and agency's must have a process under which an employee or applicant can file a complaint. Agencies have developed procedures so that aggrieved employees can file sexual orientation complaints under the agency administrative or union grievance procedures, some using the Title VII process up to and including an Agency Final Agency Decision (FAD). No further appeal rights are available as with other bases for complaints under the laws, which the Gay, Lesbian, Bisexual and Transgender (GLBT) community is trying to get changed so that these complaints are covered by law with all rights available.
B. The second part of the complaint to consider is the CLAIM(S):
Claims were previously called issues or allegations and are those actions taken, which the aggrieved alleges occurred because of the basis or bases (multiple). For example, if you received a Fully Successful (FS) Performance Appraisal (instead of Highly Successful or Exceptional) and believed that it was because of your Race, Gender, and National Origin, you would have to contact an EEO counselor (or agency designated official) within 45 days of when you learned about or received the FS Performance Appraisal. By turning it into a sentence, you can formulate your claim as follows: "I believe that I was discriminated against based on my Race (Black), National Origin (African American), and Sex (Female) when I was given a 2011 Fully Successful Performance Rating (Claim). If you have filed a complaint on
Continuous Harassment, then the FS Performance Appraisal can be part of the continuing violation (outside the 45-day mandatory timeframe) as long as the last incident
of harassment was within the 45 days of contacting a counselor. After that initial formulation, you will then have to clearly be able to show that you received the FS because of discrimination on each of the bases you named. Were there "similarly situated" employees who were given exceptional ratings, while you were treated differently because of your race, national origin and sex?