What Happens If?
Is designed to provide guidance on issues that impact equal employment opportunity (EEO) and related topics. It covers issues ranging from the complaint process to reasonable accommodation and harassment (sexual and non-sexual). It is being provided for informational purposes only. [Sources: 29 C.F.R. 1614 and the Equal Employment Opportunity Commission (EEOC) Management Directive 110 (MD-10)].
EQUAL EMPLOYMENT OPPORTUNITY PROCESS (INFORMAL STAGE)
What happens if an employee or applicant for employment, files a claim of employment discrimination?
If an employee or applicant for employee feels he/she has been discriminated against on a protected EEO bases (race, color, national origin, sex, religion, age, disability, retaliation), he/she may file an EEO complaint. This process begins when the employee makes initial contact with an EEO official. Such contact must be done within 45 days of the alleged discrimination or the date the person learns of the alleged discriminatory action. Since NSF outsources most of its counseling functions, initial contact is satisfied by contacting an official in the Office of Diversity and Inclusion (ODI), formerly the Office of Equal Opportunity Programs (OEOP). The rules and regulations regarding the EEO process can be obtained on the ODI website under 29 CFR 1614 and Management Directive 110.
What happens if a manager or supervisor is contacted by an EEO representative seeking to facilitate or intervene regarding an EEO complaint?
Under ODI policy, the ODIDirector, or a designee, may offer such facilitation in an attempt to resolve complaints at the lowest level. Such facilitation is conducted in an informal confidential environment in which parties are given an opportunity to discuss the issues in confidence and seek resolution. Parties are asked to treat each other with dignity and respect and to listen to hear rather than to formulate a response.
What happens if a manager or supervisor is contacted by an EEO Counselor regarding an EEO complaint filed by an employee or applicant?
This mean a complaint has been filed and is in the informal stage of the EEO process. During this process, the role of the counselor is to talk to all parties involved in a given complaint and attempt resolution, to define the issues, conduct an inquiry, seek to resolve the dispute, and prepare a report documenting the action taken. As a Federal employee, participation in the EEO process is mandatory pursuant to Federal regulations promulgated by the (EEOC). The counseling period is 30 days but can be extended an additional 60 days if the parties agree to Alternative Dispute Resolution.
What happens if the EEO Counselor refuses to reveal the identity of an aggrieved individual during the counseling period?
The counselor does not have to reveal the person's identity during the informal stage if the person has not agreed to do so. Under the regulations, the aggrieved may remain anonymous during the informal stage. However, once the individual files a formal complaint, the identity will not remain anonymous.
What happens if the aggrieved individual elects to participate in ADR?
The person's request would be granted in which the named parties would have to participate. ADR is a more formal method to resolve complaints and requires the individual to provide a written document regarding the election. At NSF, the most common form of ADR is mediation in which an outside neural person is contracted to conduct the session. The ODI will notify the participating manager of the issues to be addressed during the mediation. The manager identified to attend the mediation must have the authority to make a decision regarding the action. Also, ADR extends the counseling process by an additional 60 days.
What happens if ADR fails?
The EEO Counselor will issue a notice of right to file a formal complaint along with the Counselor's Report. The aggrieved will have 15 days to file a formal complaint with the agency upon receipt of the notice based on the issues raised during the counseling stage. Once a complaint is filed and accepted by the agency for further processing, the complaint is now in the formal stage of the EEO process.
EQUAL EMPLOYMENT OPPORTUNITY PROCESS (FORMAL STAGE)
What happens if an NSF employee is contacted by an EEO Investigator regarding an EEO complaint?
All Federal employees must comply with such a request. Under the Federal regulations, all formal EEO complaints are investigated within 180 days from the date the complaint was filed. The purpose of the investigation is to gather facts in which a reasonable fact finder may draw conclusions as to whether an agency has violated a provision of the non-discriminatory statutes. This function is done by a contract EEO investigator who collects relevant factual information related to the claims in the complaint. The EEOC offers numerous methods for gathering information, including interviews, fact-finding conferences, exchange of letters or memoranda, requests for information, interrogatories, and affidavits. At NSF, the most common form used to gather information is written statements or affidavits taken by the investigator as well as a request for information.
The investigator will take written statements from all parties with knowledge of the issues being investigated. This includes the person who filed the complaint (the Complainant), any managers named in the complaint (Responsible Management Officials), and any witnesses with knowledge of the issues being investigated. Under Federal laws, participation in the EEO process is mandatory. In addition to taking written statements, the investigator will also request various documents that are relevant to the claims being investigated. This information is usually requested through ODI, which forwards the request to the appropriate manager/division. However, during the investigation, the EEO Investigator may request additional documents from the manager. Once the investigation is complete, the investigator submits a Report of Investigation to ODI for review. The Complainant is given a copy of the report as well as the option of requesting a hearing before an Administrative Judge (AJ) or a Final Agency Decision (FAD) issued by NSF's Director.
What happens if the agency does not provide the requested information during the investigative stage?
An EEOC AJ may draw an inference against the agency for failure to supply requested information and witnesses during the hearing stage.
What happens if the Complainant fails to move the investigation forward?
The Complainant is considered the moving party during the EEO process. An EEO complaint may be dismissed for the Complainant's failure to cooperate.
What happens if a manager/supervisor is contacted by an attorney regarding an EEOC hearing?
If a Complainant elects a hearing before an EEOC AJ, the agency has to defend the action, which means the named manager and relevant witnesses will be involved in the hearing process. This includes discovery, and a pre-hearing process in which one party gains information that is in the possession of the other party. In preparing for a hearing, agency officials may have to respond to interrogatories, written questions served on the adversary who must provide written replies under oath, or depositions, which are recorded in which both parties can present and cross-examine a witness.
What happens if the agency does not comply with the EEO process?
The agency may be sanctioned. There are several circumstances in which an EEOC AJ may sanction an agency. Such circumstances include failure to timely complete an EEO investigation; failure to cooperate during the discovery stage; failure to appear for a status or settlement conference; or failure to produce a witnesses who is a Federal employee.
What happens if an employee requests time to handle paperwork or carry out other functions related to pursuing an EEO complaint?
Agencies must grant "official time" to such an employee. Official time as related to EEO means time on the job used by an employee to work on an EEO complaint or take actions in connection with such complaint. The MD-110 defines "reasonable" official time as "whatever is appropriate, under the particular circumstances of the complaint, in order to allow a complete presentation of the relevant information associated with the complaint and to respond to agency requests for information." Official time also extends to agency employees acting as representatives for employees entitled to official time. (See EEOC's MD-110 @ Chapter 6 Whether the request for official time is reasonable is determined on a case-by-case basis.
What happens if an AJ issues a decision on a Complainant's case?
The agency has 40 days upon receipt of the hearing file and the AJ's decision to take final action, which includes the appropriate notices to the Complainant regarding appeal rights. Failure of the agency to take final action regarding an EEOC AJ’s decision will result in the decision becoming the agency's final action on the case.
What happens if a Complainant is not satisfied with the AJ's decision?
Once an agency issues a final action or decision, a Complainant may file an appeal with the EEOC. A Complainant may also appeal to the EEOC for non-compliance of a settlement agreement.
THEORIES OF DISCRIMINATION
What happens if an employee alleged he/she was treated differently than another employee outside of his/her protected group?
The employee is alleging a claim of "disparate treatment" discrimination, in which the employee is alleging that the agency, through an official or supervisor, intentionally subjected him/her to an adverse action on the bases of race, color, sex, age, national origin, religion, disability, or in retaliation for their participation in protected EEO activity, all protected bases under Federal anti-discrimination laws. In sum, the person is alleging he or she was treated less favorably than a comparative employee not in the person’s protected class.
What happens if an employee produces evidence of a direct statement or comment that shows the employee was subjected to intentional discrimination?
In the EEO realm, such information is called "direct evidence" that illustrates discriminatory bias or that the person was intentionally subjected to discrimination. Direct evidence is not common and usually involves direct statements related to the employee, such as an elderly employee being told by a manager he or she is too old to work in a particular area.
What happens if an employee who alleges disparate treatment absent any evidence of direct evidence?
The employee must establish a "prima facie" case of discrimination by presenting enough evidence to raise an inference of discrimination. The framework for establishing a prima facie case was established via case law in McDonnell Douglas Corp. v. Green, a 1973 Supreme Court decision that established the burdens each party must meet to prove an allegation of discrimination. McDonnell Douglas states that an inference of discrimination can be met by showing that comparative employees outside of the Complainant's protected class were treated more favorably under similar circumstances. Protected class is defined as a group of individuals who share the same characteristics that is protected by law from employment discrimination — race, sex, color, national origin, religion, disability, or retaliation for protected EEO activity. For employees to be considered similarly situated, all relevant aspects of their work must be close or the same, such as the same manager, job title, etc. Further, under the McDonnell Douglas framework, once a Complainant establishes a prima facie case of discrimination, the burden shifts to the agency to articulate a legitimate, nondiscriminatory explanation for its action. If the agency provides such an explanation, the Complainant can still prevail by establishing that the agency's stated reason for its action is pretext for discrimination.
What happens if a Complainant is able to establish a prima facie case of disparate treatment discrimination in an employment discrimination complaint?
A Complainant can prevail if the agency fails to provide a legitimate, nondiscriminatory explanation for its action. For example, the EEOC has found for the Complainant in situations where the agency's failed to explain its decision and prevented the Complainant from having a full opportunity to demonstrate pretext. (See Rodriguez v. Dept. of Treasury, EEOC 01983790 (1999) and when the agency's explanation in a race discrimination complaint consisted of general statements that the Complainant was not the best qualified and thus was not selected (See Gale v. Dept. of the Air Force, EEOC 0196488 (1988).
What happens if an Administrative Judge (AJ) or the EEOC draw an adverse inference against an agency?
The agency may be subject to sanctions. An adverse inference is a sanction an AJ can use to address evidentiary misconduct on the part of one party to a complaint. In such an instance, the AJ will assume that the evidence at issue would have been favorable to the party that did not engage in any misconduct.
What happens if an employee requests a reasonable accommodation?
The agency is required to accommodate the known physical or mental limitations of an employee or applicant for employment if the employee or applicant is a qualified person with a disability. At NSF, all requests for accommodation are processed through ODI’s Disability Program Manager.
What happens if an employee alleges he or she is being subjected to discrimination based on harassment?
The employee is alleging discriminatory harassment by either supervisors and/or co-workers that is motivated by race, color, sex, religion, national origin, age, disability, or reprisal that are so severe that they have altered the employee's work environment. The EEOC has identified two types of discriminatory harassment: (1) harassment that results in a tangible employment action, and (2) harassment that creates a hostile work environment. It defines a tangle employment action as a significant change in employment status and includes actions such as hiring and firing; promoting and failing to promote; demotions; reassignments; and decisions resulting in significant changes in benefits or compensation (See EEOC's Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 1999).