
How to Navigate the EEO Maze, Part 1 – The Informal Complaint & ADR
Unlike private-sector workers, federal employees generally must initiate discrimination and retaliation complaints through the Equal Employment Opportunity (“EEO”) process.
The EEO process is—by design—complicated.
This article will walk you through the EEO process, answer FAQs, and offer guidance on how to navigate the roadblocks that federal agencies create for EEO complainants.
Step 1: File an Informal EEO Complaint.
To preserve your legal right to pursue a discrimination and/or retaliation claim against a federal agency, you must contact an EEO counselor within 45 calendar days of the date that the discriminatory/retaliatory action occurred.
For example, your supervisor issues you a negative performance review on January 1, 2024, and you believe the review is retaliatory. To pursue a retaliation claim based on that review, you must file an informal EEO complaint no later than February 15, 2024.
That said, it is best to file as early as possible, to avoid a rush to meet your filing deadline.
1. How Do I File an Informal EEO Complaint?
Each agency is required to post information on its website about how to contact its EEO office.
This information should include the location of the EEO office and a phone number through which you can reach an EEO counselor. Ideally, this information will also include an email address.
It is best to initiate EEO contact in writing, by email, so that you have a written record of meeting your filing deadline, and so that your agency cannot later dispute the substance of your initial contact.
If your agency has not provided you with an email address for its EEO office, you should call that office and request to speak with an EEO counselor for the purpose of filing an informal EEO complaint. At the close of the call, ask the counselor for their email address.
After the call, send the counselor a follow-up email that confirms you contacted them on that date to file your informal EEO complaint.
2. What Should I Say During My Initial Contact with the EEO Counselor?
If you are initiating contact with an EEO counselor via phone, be prepared to read aloud from a script or bullet points that you have pre-drafted, so that you do not forget to include any necessary details.
If you are initiating contact with an EEO counselor via email, or otherwise sending a follow-up email after your initial call, be sure to list the basis of your complaint with specificity (e.g., “discrimination on the basis of race,” “retaliation against me because I previously complained of race discrimination,” etc.).
Also be sure to include:
- a brief summary of the facts that support your complaint;
- any adverse actions (e.g., an unfavorable performance review, a disciplinary action, an involuntary transfer, etc.) that your agency took against you; and
- the dates of those actions.
For example, your summary might state, “I complained to my supervisor on January 1, 2024 that she was discriminating against me on the basis of my race because she was treating my white colleagues more favorably than me by [doing X, Y, Z], and only two weeks later, on January 15, 2024, she issued me a retaliatory review.”
If you have enough time before your filing deadline, you should also prepare a more detailed factual summary of your complaint that lists the facts (including dates and names/job titles of witnesses) in chronological order, to attach to your email submission.
If you do not have the luxury of time, a short submission similar to the example outlined above should suffice to satisfy your filing deadline. But be sure to follow up as soon as possible, in writing, with further details.
3. What Should I Include in My Detailed, Written Complaint?
As explained above, you should send a detailed, written complaint to the EEO counselor that outlines the facts in support of your complaint and explains the basis for your belief that whatever adverse action taken against you was motivated by discrimination and/or retaliation.
Generally, it is best to describe these facts in chronological order, which is easier for the reader to follow and can help to show a pattern of discrimination or a sequence of events leading to retaliation. Be sure to provide as many specific examples as you can think of.
Also be sure to include any examples of how others in your protected class (e.g., others of your same race, sex, ethnicity, etc.) have been treated similarly. For example, you might note, “my supervisor issued both my colleague and me a negative performance review, and we are the only two employees of color in our department.”
Conversely, include any examples of how others outside of your protected class have been treated more favorably. For example, you might note, “by contrast, my supervisor issued a positive performance review to my white colleague, even though I outperformed that colleague by objective measures.”
Although you can handle this process on your own, consider obtaining legal advice to ensure you are correctly describing your legal claims and preserving those claims.
4. Should I Delay Filing My Informal Complaint and Attempt to Work Things Out Myself?
No! Your supervisors may try to run out the 45-day clock on you.
For example:
- Your supervisor issues you a negative performance review on January 1, 2024.
- During the review meeting, you tell your supervisor that you believe the review is retaliatory because you recently complained of discrimination.
- Or alternatively, after the meeting, you tell a colleague the same and your colleague then relays that information to your supervisor.
- Then, lo and behold, your supervisor schedules a follow-up meeting with you to further discuss the review.
- At first, your supervisor schedules the meeting that same week.
- But then she reschedules, and “coincidentally,” the meeting is ultimately set for February, 15, 2024, i.e., your filing deadline.
Do not fall victim to this tactic.
Instead, file your informal complaint before February 15th. After you file, you can still discuss your concerns with your supervisor, although you should consider consulting with legal counsel before having any such discussion.
If your concerns happen to be fully resolved internally (don’t get your hopes up!), you can always withdraw your EEO complaint.
Step 2: If Offered, Make an Election Between Alternative Dispute Resolution (“ADR”) or Traditional EEO Counseling.
After you file an informal EEO complaint, your complaint will move through the EEO “counseling period.”
The EEO counselor should explain to you what your agency’s counseling process involves and provide information about your agency’s ADR program, if available to you.
If ADR is available, you can elect to forego traditional counseling and participate in ADR.
Generally, ADR is more effective at resolving complaints than traditional counseling (which rarely results in a resolution), although success rates vary by agency and depend on a variety of factors.
1. What Does EEO Counseling Involve?
After you contact an EEO counselor, the counselor will request to interview you about your complaint.
During the interview, the counselor will explain the EEO complaint process to you, ask questions about your complaint, and formally notify you of your EEO rights and responsibilities—including by sending you a number of forms for your review/signature.
At this stage, the counselor is supposed to focus on whether the agency has jurisdiction over your complaint, including by assessing whether your complaint was timely filed, and by identifying the legal basis of your complaint.
Therefore, during your interview, be prepared to clearly articulate the legal basis of your complaint (e.g., “sex discrimination based on [X, Y, Z]” or “retaliation based on [X, Y, Z],” etc.).
Ideally, you will have already submitted your detailed, written complaint to the counselor, and you can use that complaint to guide your oral answers during the interview.
If the counselor asks to schedule your interview before you’ve had time to submit a written complaint, try to push the interview off by a few days, to give yourself time to complete your written complaint.
After your interview, and during the counseling period, the EEO counselor is supposed to conduct neutral “fact-finding” with respect to the facts underlying your complaint.
But nothing about the EEO process is ever truly neutral. Always remember—the EEO counselor works for the agency.
Regardless of whether you elect ADR, the EEO counselor is also supposed to encourage the parties to reach an informal resolution.
To facilitate that process, the counselor will likely ask you what resolution you are seeking, and may discuss your requested resolution with agency management.
If feasible, consult with an employment attorney before you tell the agency what you want, as experienced counsel will be familiar with the potential remedies available to you under the law.
2. What Does ADR Involve?
ADR is a confidential process during which a “neutral” thirty-party will serve as a mediator between you and the agency, and will attempt to facilitate a settlement of your claim(s).
Usually, a formal ADR session will be scheduled—either in-person or virtually—to which the agency must send an individual with settlement authority.
You have the right to be represented by an individual of your choice during ADR.
If feasible, it is best to retain legal counsel familiar with the EEO process to represent you during these negotiations, or at the very least, to consult with an attorney before your ADR session.
ADR is voluntary, and you can withdraw at any point, so you might as well give it a shot.
The specifics of the ADR process vary by agency. More information about that process can be found on the EEOC’s website, here, and likely also on your agency’s EEO webpage.
3. Is My Agency Required to Offer ADR?
All federal agencies are required to maintain ADR programs, see 29 C.F.R. § 1614.102(b)(2), but agencies are not required to offer ADR in every case.
For example, per EEOC directives, “Agencies may decline to offer EEO ADR for particular issues related to the agency’s mission, such as security clearances…”
However, agencies may not decline to offer you ADR because your case involves a particular type of discrimination (e.g., sex discrimination, race discrimination, etc.).
That said, according to a March 2023 report issued by the EEOC, “60% of agencies did not provide ADR in sexual harassment complaints” during Fiscal Year 2019, which practice seems to directly violate the EEOC directives quoted above—an issue of which the EEOC is apparently aware, but which continues to persist.
Agencies also have discretion as to whether to offer ADR during the informal complaint phase or, alternatively, during the formal complaint phase, although the EEOC encourages agencies to offer ADR as early as possible. See 29 C.F.R. § 1614.603.
If ADR fails during the informal complaint phase, your case will be sent back to the EEO counselor to conclude the counseling period.
4. What Remedies Can I Ask For?
During the informal complaint and/or ADR process, the EEO counselor will likely ask you to complete a form on which you must list out the remedies you are seeking.
It is advisable to consult with counsel to learn about the remedies available to you under the specific federal statute(s) that form the basis of your claim(s).
However, if you are unsure what to ask for at the time you must submit your form, you can use a “catch-all” statement like, “I am seeking all remedies available to me under federal employment laws for the Agency’s violation of my employments rights.”
5. How Long is the EEO Counseling Period?
The EEO counseling period is supposed to be concluded within 30 days but can be extended for up to 90 days if (1) you agree in writing to such an extension or (2) you elect ADR. See 29 C.F.R. § 1614.105(e), (f).
Informal counseling is concluded either when a resolution is reached or, if no resolution is reached, when the 30-to-90-day deadline has expired.
If no resolution is reached by the conclusion of the counseling period, the counselor will schedule a “final interview” with you and issue you a notice of your right to file a formal EEO complaint.
This document will set forth the process by which you can file a formal complaint, which must be filed within 15 days.
15 days is, by design, only a short window of time, so be sure to get that formal complaint filed right away!
For guidance on the formal EEO complaint process, read “How to Navigate the EEO Maze, Part 2 – The Formal Complaint & EEO Investigation.”
Contact us.
Contact us if you need assistance with the federal EEO process. We have advised and represented many federal employees, and can help you navigate that process.
This blog post has been prepared for informational purposes only. This blog post is not intended, and should not be construed, as legal advice. The information contained in this blog post is not intended to create an attorney-client relationship, and the receipt of this information does not constitute attorney-client privileged legal advice.