How to prove workplace discrimination (Part 2)

In a previous blog, we explored the different standards of proof that protect federal employees from workplace discrimination. As we noted, it’s important to understand the proof each law requires. You don’t want to file without a clear understanding of how to make your case effective.

Similarly, you need to understand the process. The Equal Employment Opportunity Commission (EEOC) has long been overworked, and representatives don’t have time to correct your claim. You need to get it right. Today, we’ll look at the steps you can take to argue your case.

Remember to think ahead

The EEOC spells out seven different steps in the complaint process. These steps aren’t all linear, and you may be able to resolve your complaint before you go through the whole process. Nonetheless, it’s important to understand what can happen at every step because the actions you take early in the process can echo and shape how the rest of the process will proceed. You want to plan ahead.

1. Contact an EEO counselor within 45 days of the discrimination. You’ll receive the choice to participate in EEO counseling or mediate your dispute. If you are unable to settle your dispute in counseling or mediation, you’ll have 15 days to file a formal complaint.
2. As the EEOC notes, the first thing your agency will do with your complaint is try to dismiss it for procedural reasons. These could include filing too late or filing incorrectly. However, if the agency is unable to dismiss your claim, it has 180 days to investigate and reply. You’ll then respond to the agency’s findings by requesting a hearing with an administrative law judge or by asking the agency to issue a final decision on your claim.
3. If you ask the agency to issue a final decision, you can appeal to the EEOC or challenge it in federal court.
4. If you want a hearing with an administrative law judge (ALJ), you need to request it in writing and within the 30-day time limit. The hearing functions something like a trial, and at the end, the ALJ will issue a final decision. The decision may favor either you or the agency, and both sides have the opportunity to appeal the decision. Your agency, meanwhile, will have 40 days to respond to the ALJ’s decision and issue you a final order.
5. If you disagree with the agency’s final order, you have 30 days to appeal to the EEOC Office of Federal Operations. Notably, as the EEOC points out, the Office of Federal Operations will review your entire case, including the agency’s investigation, the ALJ’s decision and records from the hearing.
6. You can ask the EEOC to reconsider any decision rendered by the Office of Federal Operations. You can only request reconsideration if you can show the decision included mistakes about the facts or the applicable laws. As the EEOC notes, your agency can also ask the EEOC to reconsider a decision from the Office of Federal Operations.
7. You can file a lawsuit. The EEOC notes that you cannot jump straight into a lawsuit. You must start with the administrative process. However, you can pursue a lawsuit at several different points, including as a response to the EEOC’s final decision.

Throughout this process, you’ll want to make sure the materials you submit and the arguments you make can carry weight at later steps. You’ll also face a number of decisions about how to proceed, and you’ll want to make sure you understand what each option entails.

Furthermore, there are exceptions to the standard process. As the EEOC notes, you might skip the administrative process if you’re filing for age discrimination or gender-based pay discrimination. In these cases, you might file a lawsuit right away, although you can still pursue the administrative process.

Every detail matters

You may notice that the EEOC’s outline of the complaint process never addresses your decision to work with an attorney. Still, you can meet with an attorney whenever you want, and it’s likely in your interest to meet with one sooner, rather than later.

The sooner you meet with an attorney, the sooner you’ll be able to focus on the details and requirements that are most likely to shape your case. You’ll be able to plan multiple steps ahead, and you’ll make sure your complaint includes all the appropriate information when you need it. There are steps where you cannot introduce new evidence, and you want to make sure you introduce all the right evidence ahead of those steps. An experienced attorney can help you include all the details that could matter.