2 FAM 1530
EEO COMPLAINTS
(CT:GEN-601; 01-12-2024)
(Office of Origin: S/OCR)
2 FAM 1531 POLICY
(CT:GEN-596; 07-20-2023)
(State)
a. The Department’s EEO policy prohibits discrimination on the basis of race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age (40 years or older), disability, genetic information, or retaliation for EEO protected activity.
b. The Department is committed to a harassment-free workplace. The Department is further obligated to address and correct harassing behavior before it rises to the level of unlawful conduct that would result in a meritorious EEO complaint. See 3 FAM 1520 for more information on the Department’s Anti-Harassment Program.
c. The Department provides reasonable accommodation for a sincerely held religious belief and/or a disability and employees are entitled to make such requests to management.
d. Retaliation for participating in any process outlined in 2 FAM 1500 or for opposing discriminatory practices is prohibited. See 3 FAM 1525 and 2 FAM 1550 for more information.
2 FAM 1532 AUTHORITY
(CT:GEN-601; 01-12-2024)
(State)
a. Title VII of the Civil Rights Act of 1964, as amended (Title VII) (42 U.S.C. 2000e et seq.).
b. The Pregnancy Discrimination Act of 1978.
c. The Equal Pay Act of 1963, as amended (29 U.S.C. 206(d)).
d. The Age Discrimination in Employment Act, as amended (ADEA) (29 U.S.C. 633a).
e. The Civil Rights Act of 1991.
f. The Rehabilitation Act of 1973, as amended (Rehabilitation Act) (29 U.S.C. 791 et seq.).
g. Genetic Information Nondiscrimination Act of 2008 (29 U.S.C. 2000ff).
h. The Pregnant Workers Fairness Act of 2022 (PWFA).
i. The Foreign Service Act of 1980, as amended (22 U.S.C. 3901, et seq.).
j. Equal Employment Opportunity Commission (EEOC) regulations contained in 29 CFR Part 1614.
2 FAM 1533 APPLICABILITY
(CT:GEN-596; 07-20-2023)
(State)
Please see 2 FAM 1514 for applicability. In addition, the provisions of 2 FAM 1535.2 also apply to non-U.S. citizen employees located outside the territorial boundaries of the United States.
2 FAM 1534 important notice to individuals interested in filing an eeo complaint
(CT:GEN-596; 07-20-2023)
(State)
To preserve the right to proceed in the formal EEO process, an employee, former employee, or applicant must contact S/OCR or an EEO Counselor within 45 days of the alleged discriminatory act (or the date on which the employee or applicant reasonably suspected discrimination) or, in the case of a personnel action, within 45 days of the effective date of the personnel action. External applicants for employment can find information on how to file a complaint on the S/OCR external website.
2 FAM 1535 The eeo complaint process
(CT:GEN-596; 07-20-2023)
(State)
a. Informal process, formal process, and resolution procedures for federal agencies are outlined in, and regulated by, 29 CFR 1614. Implementation guidelines are further developed in EEOC Management Directive 110 (MD-110).
b. These policies highlight those regulations and MD-110, but do not include all information contained therein. Employees and applicants for employment are encouraged to review the regulations and MD-110 for more detail.
2 FAM 1535.1 Initiating the Informal (Pre-Complaint) Process
(CT:GEN-596; 07-20-2023)
(State)
a. Any individual who believes that the Department has discriminated against them in their employment may consult S/OCR and/or an EEO Counselor. See 2 FAM 1570. EEO counseling is open to everyone under the authority of this policy, and no Aggrieved Party (AP) will be denied EEO counseling based on the merits, or lack thereof, of the claims.
b. S/OCR will process informal complaints in accordance with the provisions of 29 CFR 1614.105 and MD-110, chapter 2.
2 FAM 1535.2 The Informal (Pre-Complaint) Process and Resolution
(CT:GEN-596; 07-20-2023)
(State)
a. Once an Aggrieved Party (AP) has requested EEO counseling, S/OCR will seek to resolve the complaint. Generally, resolution must occur within 30 days. S/OCR may grant an extension of up to 60 days. Resolution can occur via EEO counseling or Alternative Dispute Resolution (ADR).
(1) In EEO counseling, the Counselor will meet with the AP and the Responsible Management Officials (RMOs) and/or Resolving Officials (ROs) separately. The Counselor will discuss the process, the AP’s rights and responsibilities, and other information, including the AP's allegations and requested remedies. The EEO Counselor will make inquiries, conduct interviews, issue notices, file reports, and otherwise carry out their counseling responsibilities in accordance with the standards and time limits set forth in 29 CFR 1614.105 and 2 FAM 1570.
(2) In ADR, a neutral mediator or facilitator will work with the appropriate parties to facilitate the dispute resolution process.
(3) In both EEO counseling and ADR, the process will be non-adversarial and focused on resolution. Neither an EEO Counselor nor a mediator will make decisions or determinations about the merits of the AP’s allegations. If the parties achieve resolution, S/OCR will prepare a settlement agreement and finalize the informal process. See 2 FAM 1537 for more information.
b. If the parties do not achieve resolution, then U.S. citizen APs will be issued a Notice of Right to File (NRF) a formal complaint and must file their formal complaint within 15 days of receipt, if they wish to proceed in the process.
2 FAM 1535.3 Initiating the Formal (Complaint) Process
(CT:GEN-596; 07-20-2023)
(State)
a. S/OCR will process formal complaints in accordance with 29 CFR 1614.106-110 (1614 procedures) and MD-110. S/OCR provides the following information to facilitate understanding of the formal process. In the event of a conflict between the FAM and 1614 procedures/MD-110, the latter is controlling. Parties should contact S/OCR directly with any specific questions. Parties are also encouraged to refer to the EEOC website for the most up-to-date guidance.
b. Any U.S. citizen employee or applicant for employment with the Department who has received a Notice of the Right to File (NRF) may file a formal complaint of discrimination with S/OCR. The complaining party (CP) must file a formal complaint within 15 days of receiving the NRF to preserve the right to proceed in the formal process, and failure to do so without good cause could result in the dismissal of the complaint. EEO Counselors are not authorized to receive formal complaints on behalf of S/OCR.
c. S/OCR will acknowledge in writing receipt of the formal complaint, generally within five business days.
d. Special Circumstances: Where a mixed case is involved, Civil Service CPs should consult 2 FAM 1560. Similarly, for appealable actions under the Foreign Service Grievance System, Foreign Service CPs should consult 2 FAM 1560.
e. A formal complaint may be amended following the filing of the formal complaint to include claims that are like or related. Amendments may affect the processing time of the complaint.
f. The Department and CP may agree to settle the matter at any time during the formal process. See 2 FAM 1537 for more information.
g. The EEO process is elective, and a CP may withdraw their complaint at any time during the processing of the complaint.
h. CPs may raise allegations of improper processing of their complaint to S/OCR. The allegations must be raised during the processing of the underlying complaint before a final action has been issued.
(1) S/OCR will attempt to resolve the dissatisfaction as early and expeditiously as possible. This may involve conducting an internal inquiry into the allegations to determine what, if any, action is needed. S/OCR will inform the CP of the outcome.
(2) The CP may present concerns about the processing of their case to EEOC during the hearing or appeal stages of the formal process.
2 FAM 1535.4 EEO Complaint Procedural Review
(CT:GEN-596; 07-20-2023)
(State)
a. Per 29 CFR 1614.107, S/OCR may procedurally dismiss any complaint or claim. Grounds for procedural dismissal include failure to state a claim; untimely EEO Counselor contact; untimely filing of a formal complaint; mootness; (in very specific circumstances) abuse of process; and all other grounds stipulated in 1614.107.
b. Dismissal of a complaint in full constitutes a Final Agency Decision (FAD) and may be appealed. See 2 FAM 1535.6 for more information.
c. If S/OCR accepts a complaint in full, all claims shall be investigated.
d. If a complaint is dismissed in part, S/OCR will investigate only the accepted claims. CP may appeal the partial dismissal only after a FAD is issued, if applicable. An administrative judge will review the partial dismissal should the CP elect a hearing. See 2 FAM 1535.6 for more information.
e. Contractors: Decisions as to whether S/OCR accepts formal complaints from third-party contractors are made on a case-by-case basis, in accordance with law, e.g., Complainant v. Department of Health & Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998).
2 FAM 1535.5 EEO Complaint Investigations
(CT:GEN-596; 07-20-2023)
(State)
a. S/OCR will investigate all accepted claims in accordance with 29 CFR 1614.108 and MD-110, chapter 6. S/OCR may use contract investigators or arrange for another federal agency to conduct the investigation. S/OCR oversees all EEO investigations.
b. The purpose of the investigation is to generate a complete, impartial, and appropriate factual record, such that a reasonable fact finder can draw conclusions as to whether discrimination occurred.
c. Federal employees contacted by EEO investigators must:
(1) Comply with the requirement to preserve documents for pending litigation.
(2) Produce documentary and/or testimonial evidence in accordance with the time, place, and manner of the investigator’s request. Testimony shall be provided under oath or affirmation, under penalty of perjury.
d. By regulation, investigations must be completed within 180 days, or up to 360 days with extensions.
e. S/OCR will provide CP and their representative, if applicable, with a copy of the report of investigation (ROI) when it is complete.
2 FAM 1535.6 EEO Complaint Decisions on the Merits
(CT:GEN-596; 07-20-2023)
(State)
a. S/OCR will notify CP of their right to request a hearing before an administrative judge (AJ) at the EEOC, to receive a FAD from S/OCR, or to file a civil action in U.S. District Court.
b. S/OCR shall notify the CP of each avenue of relief and their procedural timeframes upon completion of the ROI or after such time the ROI should have been completed by regulation.
c. The CP has 30 calendar days following receipt of the ROI to elect an EEOC hearing, a FAD, or filing in U.S. District Court.
d. EEOC Hearings:
(1) If CP requests a hearing, the EEOC shall assume full responsibility for the adjudication of the complaint, including overseeing any additional development of the record. See 29 CFR 1614.109 and MD-110, chapter 7 for information about the hearing process.
(2) After the EEOC renders a decision on the merits of a complaint, S/OCR will issue a final order stating whether the Department will fully implement the decision. The final order shall contain a notice of further procedural rights, to include the right to appeal the decision to EEOC’s Office of Federal Operations (OFO).
e. Final Agency Decisions (FADs):
(1) If CP requests a FAD, or if no election is made within 30 days of receipt of the ROI, S/OCR shall issue a FAD within 60 days. See 29 CFR 1614.110 and MD-110, chapter 5 for information about FADs.
(2) S/OCR will prepare a decision using the evidence developed in the ROI to decide whether the CP was subjected to illegal discrimination, as alleged. S/OCR may sua sponte take notice of an issue without prompting or suggestion by CP.
(3) The FAD shall contain a notice of further procedural rights, to include the right to appeal the decision to OFO.
f. Filing in U.S. District Court:
(1) The filing of a civil action will terminate further administrative processing of the complaint with S/OCR.
(2) CP can learn about filing federal lawsuits under the EEO anti-discrimination laws on the EEOC’s website and/or 29 CFR 1614.407.
2 FAM 1536 APPEALS
(CT:GEN-596; 07-20-2023)
(State)
a. CPs are entitled to file an appeal with EEOC’s Office of Federal Operations (OFO) within 30 days of receipt of a final action from S/OCR, which includes dismissals, FADs, and final orders. S/OCR will notify CP of their right to appeal to OFO. Appeals must be submitted to the EEOC with a copy to S/OCR.
b. Appeal of Complaint Dismissal by S/OCR: If a complaint is dismissed in part, S/OCR will only investigate the accepted claims. CP may appeal the partial dismissal only after a FAD is issued. An administrative judge (AJ) will review the partial dismissal should the complainant elect a hearing. If a complaint is dismissed in its entirety, S/OCR will notify CP of their right to appeal the dismissal to OFO.
c. Appeal of AJ Decision: If the Department will fully implement the AJ’s decision rendered after an EEOC hearing, CP may appeal to OFO and must inform S/OCR. If the Department will not fully implement the AJ’s decision, the Department will appeal to OFO and inform the CP.
d. OFO’s decision on an appeal is final for purposes of the EEO administrative process. See 29 CFR 1614.401 and MD-110, chapter 9 for information about the appeal process.
e. The Department strongly encourages using the EEOC online portal for hearings and appeals.
2 FAM 1537 SETTLEMENTS AND BREACHES
(CT:GEN-596; 07-20-2023)
(State)
a. The parties may agree to settle at any point during the EEO process.
b. To be enforceable, a settlement agreement must be in writing and signed by the AP/CP, their representative (if any), the Resolving Official, and the S/OCR Director.
c. Breach of Settlement:
(1) If the AP/CP believes the Department has breached the terms of the agreement, they must present the allegation in writing to S/OCR within 30 days of when the AP/CP knew or should have known of the alleged noncompliance. AP/CP may request that the terms of settlement agreement be implemented or, alternatively, that the complaint be reinstated for further processing from the point processing ceased.
(2) S/OCR will review the allegation, conduct a review of factual circumstances, and will notify AP/CP in writing of its findings.
(3) If a breach is found, S/OCR will notify the Department to take appropriate corrective measures.
(4) If the AP/CP is not satisfied with S/OCR’s decision, they may appeal the decision to OFO.
2 FAM 1538 THROUGH 1539 UNASSIGNED