| Bar Bulletin |
June,
2003 |
| June Focus Article |
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Distinctive Features of Federal Employees'
Equal Opportunity Rights
By W.
Michel Pierson
The federal
statutes that prohibit employment discrimination for reasons such as race,
sex, age, religion or disability apply to agencies of the federal
government as well as to other employers. However, there are significant
procedural differences between the enforcement mechanisms for federal
employees and for other employees, which also may give rise to important
variations in substantive principles. The many federal and postal
employees who work in the Maryland area are subject to these procedures,
creating a large volume of cases in which legal assistance may be
appropriate.
Private employees
initiate a complaint of discrimination by filing a charge with the Equal
Employment Opportunity Commission (EEOC) or with a state or local fair
employment practice agency. These agencies are empowered to investigate
and attempt to resolve the complaint, but most charges in which attorneys
are likely to be involved are not resolved at this stage; the typical case
handled by an attorney is litigated in federal or state court governed by
a body of jurisprudence developed by the federal courts.
The procedure that
governs the complaints of federal and postal employees is quite different.
These cases are often resolved by specialized decision makers without
resort to courts, although the opportunity for traditional litigation is
also available.
Federal sector
discrimination complaints are processed according to detailed regulations
promulgated by the EEOC. The employing agency has significant
responsibility for initial processing of employee complaints of
discrimination. Agencies are required to create and staff EEOC offices, to
process and investigate complaints and to develop regulations and
procedures for this purpose. An employee who believes that he or she has
been subjected to discrimination must make a request for informal
counseling within 45 days after the act in question. An EEOC counselor
employed by the agency attempts to bring about an informal resolution. If
the counseling process terminates without a resolution the employee may
file a formal complaint with the agency within 15 days thereafter. The
agency must conduct an impartial investigation of the complaint and
produce a record of its investigation, including affidavits from witnesses
and documentary exhibits with a copy provided to the employee.
After the
investigation is concluded, the employee may request a hearing before an
administrative judge of the EEOC or may ask for a final decision from the
agency on the investigative record. Each EEOC District Office has a
hearings unit staffed by administrative judges who are responsible for
overseeing cases and rendering decisions on complaints. (Cases in Maryland
are handled by the Baltimore District Office.) The hearing procedure is
similar to court litigation. The parties have the right to discovery
including interrogatories, document production and depositions. Hearings
are conducted much like court trials, although the regulations provide
that rules of evidence are not to be applied strictly. A major difference
from court procedure is that administrative judges lack subpoena power,
although the agency can be required to produce witnesses who are federal
employees.
Administrative
judges are empowered to grant a full range of remedies, including
corrective actions, back pay, attorney’s fees and compensatory damages.
Either the agency or the employee may seek appellate review of the
decision by the EEOC Office of Federal Operations (OFO). Final decisions
are enforceable by petition to the OFO.
At numerous points
in the process, the employee has the right to terminate administrative
processing of the complaint by the EEOC by electing to file a complaint in
federal court. The employee may file suit within 90 days after a final
agency decision, before a decision if 180 days has passed after filing of
the complaint or after a final decision by the OFO. The case then proceeds
like any other litigation in federal court.
Counsel for the
employee must weigh the choice of forum carefully. The OFO has developed
its own body of appellate case law. Although the OFO follows Supreme Court
precedent in interpreting the substantive principles relating to
discrimination, its application of those principles is not necessarily
identical to that of the courts in the federal circuit where the agency is
located and may be more favorable to the employee.
This is a brief
sketch of a procedural scheme whose features cannot be fully covered in
this treatment. Fortunately for the attorney who decides to handle such a
complaint, information about the procedural and substantive aspects is
readily available. The EEOC website has a section devoted to federal
sector complaints, which includes not only the regulations that govern the
EEO process but also directives that develop procedural and substantive
issues in greater detail, as well as the appellate rulings of the OFO for
a period of several years.
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