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Silver Spring, Maryland, 20910
 
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Email:   info@archibonglaw.com
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EEOC
What claims can I bring before the EEOC?

There are a variety of statutes which prohibit employment discrimination against Federal employees. You can bring claims of discrimination against your Federal employer under any of these laws. These laws create what are called “protected groups” – Congress has determined that individual members of these groups – or whole groups – may not be subject to some negative treatment because of their membership in the protected group.

As a Federal employee, you are entitled to a workplace free of disparate treatment based on race, color, religion, sex, or national origin. Individuals who are 40 years of age or older may also bring claims against the Federal government under the Age Discrimination in Employment Act (ADEA). Finally, the Americans with Disabilities Act (ADA) and the Rehabilitation Act prohibit discrimination against federal employees who are qualified individuals with disabilities.

How to prove discrimination based on “disparate treatment”?

This is not the case for all claims of discrimination, but generally speaking, to prove to an EEOC Judge (or jury in Federal District Court) that you have been treated differently because of your membership in a protected group, you have what is called the “burden of proof”.

The federal employee must first prove a “prima facie” case of discrimination. Once the Federal employee proves a “prima facie” case of discrimination, the Agency must persuade the Judge or jury that they had a “legitimate, non-discriminatory reason” for the action they took. If they do persuade the Judge or jury of the legitimacy of their action, the federal employee has the burden of proving that the Agency’s legitimate non-discriminatory reason is a pretext – a smoke-screen meant to hide discrimination.

The Federal employee’s burden of proof is, generally speaking, a “preponderance of the evidence”. I’ll spare you the legal definition – the best way to describe it is that it is one feather more than 50%.

What is a hostile work environment?

The law considers a hostile work environment to be an environment that is permeated by speech or conduct that is “severe” or “pervasive” enough to create an environment that both the employee and an objectively reasonable person find to be hostile or abusive. To be a legally actionable hostile work environment, the conduct or speech must be based on race, religion, sex, national origin, age, or disability. This is where most Federal Employees go wrong – the anti-discrimination statutes do not create a general civility code or any guarantee that your bosses and managers will be decent, civil, polite, respectful or professional. They can be jerks or bullies, under the anti-discrimination laws, so long as the reason that they are jerks or bullies isn’t because of your race, religion, sex, national origin, age, or disability. If they are non-discriminatory jerks or bullies, then often times the best recourse is through your employee’s union under contractual terms in the collective bargaining agreement.

What is Disability Discrimination?

There are, generally speaking, three ways that an employer can discriminate based on a disability.

The first is by enacting a rule or policy that, while not discriminatory on its “face”, has a greater negative impact on disabled federal employees; this kind of discrimination is rare – but it does not require proof that your employer intended to discriminate against you.

The second is by treating a disabled federal employee differently (and most likely, less favorably) than a non-disabled federal employee – this is called disparate treatment.

The third is by failing to accommodate a federal employee who is a “qualified individual with a disability” – so long as that accommodation will not place an undue hardship on the employer.

What is the process for filing an EEO Complaint?

This is the general process Federal Employees follow in filing their administrative complaints of discrimination. This process does not apply to private sector employees, and may not apply to state, county, city, or local government employees. First, the Federal employee has to contact an EEO Counselor at their Agency and file an informal request for EEO Counseling. If that does not put an end to the discriminatory act/conduct, then the Federal Employee will have the right to file a Formal Complaint of Discrimination. That is usually followed by either an Agency’s Final Agency Decision (FAD), or an EEO Investigation. After the conclusion of the Formal Complaint and Investigation Process, the employee will have the opportunity to request a FAD or a Hearing before an EEOC Administrative Judge. At certain points in the above-process, the employee has opportunities to bring his or her claim to Federal District Court, as long as certain events occur and certain amounts of time pass. The timelines in Federal Employee Complaints are very complicated and can often be case-specific.

Who can represent me?

A federal employee may select any representative to represent him. This includes attorneys, union stewards, co-workers, friends, peers, etc. Most agencies have rules prohibiting managers or supervisors above your level from representing you.

Keep in mind, however, that you often get what you pay for. Moreover, you cannot recover the costs for your defense if you hire someone other than an attorney.

Can I file suit in Federal District Court?

Yes, but first you must “exhaust your administrative remedies”. You should contact us to determine whether or not you have exhausted your administrative remedies.

Is mediation available?

Generally speaking, informal mediation is possible at any stage of the complaint process: informal, formal, or hearing. Our Firm does strive to mediate every case at least once before an EEOC Administrative Hearing. We have used private mediators, Federal mediators, Settlement Judges, and have frequently asked that Chief Administrative Judges of the EEOC assist the parties in mediation.

What happens if I lose at my EEOC Administrative Judge hearing?

If you do not prevail after an EEOC Administrative Hearing, the Agency will be directed to prepare a Final Agency Decision, or FAD. Upon receipt of the FAD, you will have an opportunity to appeal the FAD to the Office of Federal Operations (OFO) in Washington, D.C. We jokingly refer to OFO as the Slow-FO, as hearing back on your appeal can take anywhere from 6 months to 48 months.

What remedies are available if I win at my hearing?

The EEOC Administrative Judge has broad remedial power. The goal of the EEOC’s remedial authority is not only to restore you to the status quo before the discrimination, but also to prevent the occurrence of discrimination in the future.

The EEOC’s remedial authority includes equitable or declaratory relief (for example, postings of discrimination, reinstatements to positions, re-running selection processes, transfers to other positions, etc.), monetary relief (actual monetary loss, non-pecuniary losses such as emotional distress, loss of earning power, loss of consortium, loss of enjoyment of life, etc), and attorneys fees and costs.

The EEOC’s ability to award compensatory (monetary) damages is capped. There is no cap on your actual out-of-pocket losses. However, damages for non-pecuniary compensatory damages (emotional distress, loss of earning power, loss of consortium, loss of enjoyment of life, etc.) are capped at $300,000. If he or she finds discrimination, the EEOC AJ determines the amount of non-pecuniary compensatory damages by considering the nature, severity and duration of the harm you suffered, and compares his or her finding with other awards in similar cases.

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