Equal Employment Opportunity Commission
General Responsibilities and Procedures
The U.S. Equal Employment Opportunity Commission (EEOC) enforces the principal federal statutes prohibiting employment discrimination, and through its Office of Federal Operations (OFO) provides oversight for the federal government’s EEO complaint adjudication and affirmative employment functions. It also is responsible for the federal government’s EEO appellate function. EEOC headquarters can be contacted at 131 M St. N.E., Washington, DC 20507; phone (202) 663-4900, TTY (202) 663-4494, www.eeoc.gov; a listing of field offices is at www.eeoc.gov/field.
The Equal Employment Opportunity Act of 1972 extended to federal workers the provisions of Title VII of the Civil Rights Act of 1964, the statute prohibiting employment discrimination based on race, color, religion, gender, or national origin. The 1972 act also required federal agencies to establish affirmative employment programs.
Section 501 of the Rehabilitation Act of 1973 extended employment discrimination protections to federal employees and applicants for employment with disabilities, and required agencies to prepare affirmative action program plans for the hiring, placement, and advancement of such individuals.
The Civil Service Reform Act of 1978 provided that federal personnel management should follow merit principles, including treating employees fairly and equitably and that personnel actions should be free from prohibited practices, including discrimination on the basis of race, color, national origin, religion, sex, age or disability. It also provides that certain personnel actions cannot be based on attributes or conduct that do not adversely affect employee performance, such as marital status and political affiliation. The CSRA also prohibits reprisal against federal employees or applicants for whistleblowing, or for exercising an appeal, complaint, or grievance right.
Additional key laws in the area include the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, the Pregnancy Discrimination Act of 1978, the Americans with Disabilities Act of 1990, the Civil Rights Act of 1991, the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, and the Genetic Information Nondiscrimination Act of 2008. Also, the Veterans’ Readjustment Assistance Act of 1974 required agencies to have an affirmative action program for the recruitment, employment, and advancement of disabled veterans and requires a separate affirmative action plan for disabled veterans that is to be part of agencies’ efforts under the Rehabilitation Act (see Chapter 8, Section 8).
Regulations at 5 CFR 300 state generally that an employment practice must not discriminate on the basis of race, color, religion, sex (which includes pregnancy and gender identity), national origin, age (as defined by the Age Discrimination in Employment Act), disability, genetic information (including family medical history), marital status, political affiliation, sexual orientation, labor organization affiliation or nonaffiliation, status as a parent, or any other non-merit-based factor, or retaliate for exercising rights with respect to those categories, where such appeal rights are available. Those policies are cited as pertinent elsewhere in 5 CFR, including sections governing hiring, promotion and internal placement programs, training, appeals and others,
Executive Order 13163 of 2000 required agencies to expand outreach efforts, increase efforts to accommodate disabled individuals, and prepare plans to increase the employment opportunities for individuals with disabilities. Executive Order 13164 of 2000 promoted a model federal workplace that provides reasonable accommodation for individuals with disabilities in the application process and for employees to perform the essential functions of a position. Under the order, agencies are required to establish written procedures for processing requests for reasonable accommodation.
These policies apply regardless of the source of the information. For example, an employer may not use personal information gleaned from social media postings to make employment decisions on prohibited bases (although such postings can be used to support an individual’s allegation of harassment). Certain types of inquiries about an applicant or current employee are specifically barred; see www.eeoc.gov/eeoc/publications/
The head of each federal executive department and agency is charged by Title VII of the Civil Rights Act, as amended, and by Executive Order 11478 of 1969 with establishing and maintaining an affirmative employment program of equal opportunity. EEOC issues management directives designed to guide and instruct agencies on the development of affirmative employment program plans for women, minorities and individuals with disabilities. Under these directives, agencies are to take actions to eliminate barriers to minorities, women, and people with disabilities in their workplaces.
EEOC also presents the federal government’s position on matters affecting workplace discrimination, issues regulations and other guidance on laws under its purview, and advises agencies on their EEO-related policies.
Federal employee complaint processing regulations are at 29 CFR 1614. Agency EEO programs must comply with those regulations and EEOC management directives and management bulletins.
The primary policy is Management Directive 110 (at www.eeoc.gov/federal/directives/md110.cfm), which was last revised in 2015 to address issues including real or perceived conflicts of interest when EEO or senior-level agency officials are named in complaints; procedures for agencies to seek EEOC approval to conduct pilot projects of alternative complaint processing procedures; and the role of alternative dispute resolution in the federal sector process.
EEOC reviews agency programs and if it determines that a program is non-compliant, it will give the agency a reasonable opportunity to cure the defects, provide a reasonable justification for its non-compliance, or establish that its program is in compliance. A notice of non-compliance will be issued only when an agency fails to satisfy one of those criteria. EEOC has discretion to determine whether a notice of non-compliance is made public.
EEOC can order agencies to comply with both settlement agreements and final decisions arising from complaints filed by employees, and in the case of a settlement breach it can order that the complaint be reinstated from the point processing ceased.
Under a 2014 memorandum of understanding with the Office of Special Counsel (at www.eeoc.gov/laws/mous), EEOC may refer to that agency instances of non-compliance for possible disciplinary action against the responsible agency officials. This includes cases in which an agency fails to comply with an EEOC order or EEOC has determined that appropriate action has not and will not be taken by the employing agency, and any other matter that the EEOC believes warrants enforcement by OSC.
EEOC also refers to OSC for potential enforcement action cases in which EEOC finds that an agency has discriminated against any employee or applicant for employment.
Agencies can seek approval from the EEOC to conduct pilot projects in which the complaint processing procedures vary from the requirements of 29 CFR 1614.
A pilot project typically can run for two years but can be extended an additional year.
Prohibited Retaliation—Prohibited retaliation occurs when an employee, applicant for employment, or former employee is treated adversely because he or she has engaged in protected activity under the civil rights statutes prohibiting discrimination in the workplace. To establish a claim of retaliation, a complainant must prove that he or she engaged in a protected activity; that he or she suffered an adverse action; and causation.
Engaging in a protected activity consists of either opposing a discriminatory practice prohibited by one of the employment statutes or participating in an employment discrimination proceeding. Participation also occurs when an employee files a labor grievance and the employee raises issues of unlawful employment discrimination in such a grievance. The participation clause protects individuals against retaliatory actions even if the participation in the employment discrimination proceeding was not reasonable or made in good faith.
An action is “adverse” if it is reasonably likely to deter protected activity by the individual or other employees; it does not have to rise to the level of a termination or demotion, or even materially affect the terms, conditions, and privileges of employment.
Direct evidence of a retaliatory motive may be any policy or statement made by the agency or agency official that facially shows a bias against a protected group and is linked to the adverse action. However, circumstantial evidence linking the adverse action to the protected activity also can be sufficient, so long as it is shown that the employer knew of the individual’s prior protected activity. If the evidence is circumstantial, the agency has the opportunity to show that the adverse action was legitimate; if it does so, the complainant can offer additional evidence to show that the reason provided is a pretext.
Also see www.eeoc.gov/laws/guidance/retaliation-guidance.cfm.
Model Workplace Policy—Under EEO Management Directive 715 (MD-715), agencies must take proactive steps to prevent unlawful discrimination and must maintain an efficient, fair, and impartial complaint resolution process, including use of alternative dispute resolution (see Section 7 of this chapter). Management Directive 715 also sets policy for establishing and maintaining an effective affirmative action program for the hiring, placement, and advancement of people with disabilities to become a model employer of people with disabilities (see Special Recruitment, Hiring and Placement Programs in Chapter 8, Section 1).
Zika Virus Exposure—See Zika Virus Exposure in Chapter 8, Section 4 for policies regarding protections related to potential or actual exposure to that virus.
Genetic Information—The Genetic Information Nondiscrimination Act of 2008 prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and limits the disclosure of genetic information. Genetic information includes information about genetic tests of an individual and family members, as well as information about any disease, disorder, or condition.
The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. It is also illegal to harass a person because of his or her genetic information, to retaliate for filing a charge of discrimination related to genetic information, or to disclose genetic information about applicants or employees.
Note: While the ADA and GINA generally prohibit employers from obtaining and using information about employees’ own health conditions or about the health conditions of their family members, including spouses, both laws allow employers to ask health-related questions and conduct medical examinations such as biometric screenings to determine risk factors if the employer is providing health or genetic services as part of a voluntary wellness program. See www.eeoc.gov/laws/types/genetic.cfm.
Title VII of the Civil Rights Act
Title VII of the Civil Rights Act of 1964, applicable to federal employees under the Equal Employment Opportunity Act of 1972, prohibits discrimination in employment, including recruitment, hiring, promotion, wages, benefits, work assignments, performance evaluations, training, transfer, leave, discipline, layoffs, discharge, and any other term, condition, or privilege of employment. Title VII prohibits not only intentional discrimination, but also practices that appear to be neutral, but that limit employment opportunities and are not based on business need. Title VII retaliation claims must be proved according to principles of “but-for” causation. That requires a showing that an adverse employment action would not have occurred except for retaliation—and not merely that retaliation was a motivating factor in the action.
Race/Color Discrimination—Title VII makes it unlawful to discriminate against any employee or applicant for employment because of his or her race or color in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups. Title VII prohibits both intentional discrimination and neutral job policies that disproportionately exclude minorities and that are not job related.
Equal employment opportunity cannot be denied because of: marriage to or association with an individual of a different race; membership in or association with ethnic based organizations or groups; or attendance or participation in schools or places of worship generally associated with certain minority groups.
Title VII does not contain a definition of “race.” Race discrimination includes discrimination on the basis of ancestry or physical or cultural characteristics associated with a certain race, such as skin color, hair texture or styles, or certain facial features. Discrimination on the basis of an immutable characteristic associated with race violates Title VII even though not all members of the race share the same characteristic.
Title VII also prohibits discrimination on the basis of a condition that predominantly affects one race unless the practice is job related and consistent with business necessity.
Color discrimination occurs when a person is discriminated against based on his/her skin pigmentation (lightness or darkness of the skin), complexion, shade, or tone. Color discrimination can occur between persons of different races or ethnicities, or between persons of the same race or ethnicity.
Racial Harassment—Harassment on the basis of race and/or color also violates Title VII. Ethnic slurs, racial jokes, offensive or derogatory comments, or other verbal or physical conduct based on an individual’s race/color constitutes unlawful harassment if the conduct creates an intimidating, hostile, or offensive working environment, or interferes with the individual’s work performance.
National Origin Discrimination—No employee or applicant can be denied equal employment opportunity because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. This includes marriage or association with persons of a national origin group; membership or association with specific ethnic promotion groups; attendance or participation in schools or places of worship generally associated with a national origin group; or a surname associated with a national origin group.
Religious Discrimination—The Civil Rights Act prohibits agencies from discriminating against individuals in hiring, firing, and other terms and conditions of employment because of their religion. The Act also requires agencies to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the agency. Flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers are examples of accommodating an employee’s religious beliefs.
Agencies cannot: schedule examinations or other selection activities that conflict with a current or prospective employee’s religious needs; inquire about an applicant’s future availability at certain times; maintain a restrictive dress code; or refuse to allow observance of a Sabbath or religious holiday, unless the agency can prove that not doing so would cause an undue hardship.
Employers including the government must not discriminate against job applicants or current employees based on practices such as the wearing of religious clothing or articles. They must accommodate those practices, if necessary by waiving typical dress and grooming policies, except in limited circumstances that would impose an undue hardship for workplace safety, security or similar reasons. Also, an employer in general must not question the sincerity of a belief. Guidance is at www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm. Also see Compensatory Time Off for Religious Observances in Chapter 5, Section 1.
Gender-Based Discrimination—Under the Civil Rights Act, it is illegal to classify a job as “male” or “female” or to maintain separate lines of progression or seniority lists based on gender where this would adversely affect any employee unless gender is a bona fide occupational qualification for that job. This prohibition covers designating certain jobs as “light” or “heavy” since that could be a disguised form of classification by gender. Nor may job vacancies restrict applications by gender unless there is a bona fide occupational qualifications requirement. Any pre-employment inquiry that expresses any limitation, specification or discrimination as to gender is illegal unless it is based on such an occupational qualifications requirement.
Gender as a bona fide occupational qualification must be justified in terms of the requirements of the particular job and not on the basis of a general principle, such as an assumption that the turnover rate is higher among women than among men, or that men are less capable of handling certain types of work. The preference of co-workers, the employer or clients generally is not to be deemed a bona fide occupational qualifications requirement. An employer may not discriminate between men and women with regard to benefits.
The Pregnancy Discrimination Act of 1978 clarified that discrimination based on pregnancy, childbirth, or related medical conditions is a form of gender discrimination prohibited by the Civil Rights Act. Further, while pregnancy itself is not a disability as defined by the Americans with Disabilities Act, workers with pregnancy-related impairments may be able to demonstrate that they are entitled to reasonable accommodation. An employer policy that is not intended to discriminate on the basis of pregnancy still may violate the Act if it imposes significant burdens on pregnant employees without a sufficiently strong justification. Guidance is at www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.
Note: In an October 4, 2017 memo (at www.justice.gov/ag/page/file/1006981/download) the Justice Department took the position that Title VII’s prohibition on sex or gender discrimination does not encompass discrimination based on gender identity per se, including transgender status, although adding that certain other laws do explicitly prohibit gender identity discrimination along with other types of discrimination in certain contexts.
Sexual Harassment—Sexual harassment is a violation of Section 703 of Title VII of the Civil Rights Act. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
In determining whether alleged conduct constitutes sexual harassment, the record as a whole and the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred, will be looked at. The determination of the legality of a particular action will be made from the facts on a case-by-case basis.
An employer is responsible for its acts of harassment and may be liable for those of its agents and supervisory employees. With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.
An employer may also be responsible for acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of such non-employees will be considered.
Equal Pay Act
The 1963 Equal Pay Act prohibits gender-based discrimination in any form of salaries or wages paid to men and women who are employed in the same establishment and perform jobs requiring equal skill, effort, and responsibility under similar working conditions, except where the payment is made under a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or a differential based on any factor other than gender.
It is unlawful for employers to reduce the wages of either gender to equalize pay between men and women.
A violation may occur where a different wage is paid to a person who worked in the same job before or after an employee of the opposite sex and may take place where a labor union causes the employer to violate the law. Employers found in violation of the act can be compelled to pay back pay, punitive relief and liquidated damages if the violation is shown to be willful.
To establish a prima facie case under this law, a plaintiff must show that the employer pays different wages to employees of the opposite sex even though the employees perform equal work on jobs requiring equal skill, effort and responsibility under similar working conditions. The jobs need not be identical, but they must be substantially equal; job content, not job title, determines whether jobs are considered substantially equal. Once a prima facie case is made, the burden shifts to the defendant to show that the pay differential is justified by one of the statute’s enumerated defenses.
Complaints of discrimination by federal employees under the Equal Pay Act can be filed under 29 CFR 1614, but unlike Title VII, the filing of an administrative complaint is not required before filing a lawsuit.
Further, a remedy for gender bias in wages may be pursued under Title VII.
The Rehabilitation Act of 1973 requires agencies to develop and carry out plans for the hiring, placement, promotion and retention of persons with disabilities (many similar provisions were applied under the 1990 Americans with Disabilities Act; see below). The Rehabilitation Act protects persons who have a physical or mental impairment that substantially limits one or more of such person’s major life activities, who has a record of such an impairment, or is regarded as having such an impairment.
Physical or mental impairment means certain defined physiological disorders or conditions, cosmetic disfigurement, or anatomical loss or mental or psychological disorder. Major life activities are functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
An agency must make reasonable accommodation to the known physical or mental limitations of an applicant or employee who is a qualified individual with a disability unless the agency can demonstrate that the accommodation would impose an undue hardship on the operations of its program. Reasonable accommodation may include making facilities more accessible, job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions.
In determining whether an accommodation would impose an undue hardship on the agency, factors to be considered include the overall size of the agency’s program with respect to the number of employees, number and type of facilities and size of budget, the type of agency operation, including the composition and structure of the agency’s workforce, and the nature and the cost of the accommodation.
Regulations at 5 CFR 1614.203 specify affirmative action obligations that Section 501 of the Rehabilitation Act imposes on federal agencies as employers. The regulations require agencies to take specific steps reasonably designed to gradually increase the number of employees who have a disability as defined under Section 501, and the number of employees who have a “targeted” disability, as defined by OPM or EEOC policy, until they meet goals set by the EEOC: having 12 percent of its workforce be people with disabilities, and 2 percent of its workforce be people with targeted disabilities.
Included are requirements for agencies to recruit individuals with disabilities and to ensure that individuals with disabilities are aware of and have an opportunity to apply for positions. Agencies further must have sufficient staff to answer disability-related questions from applicants and members of the public and to process requests for reasonable accommodations in the hiring process and applications under the Schedule A hiring authority for individuals with certain disabilities. The rules do not require agencies to establish a preference for hiring people with disabilities.
The regulations also require agencies to provide personal assistance services to employees who, because of targeted disabilities, require such assistance in order to be at work or participate in work-related travel. Those are services that help individuals perform activities of daily living, including, for example, assistance with removing and putting on clothing, eating, and using the restroom. Such services do not, however, include medical care, and need not be provided by someone who has medical training or qualifications. They also do not involve direct assistance in performing the responsibilities of a job.
Guidance is at www.eeoc.gov/federal/directives/personal-assistance-services.cfm.
Agencies further must provide sufficient opportunities for employees with disabilities to advance within the agency through activities such as specialized training and mentoring programs and strong enforcement against disability-based harassment.
Americans with Disabilities Act
The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination against individuals with disabilities. Section 501 of the Rehabilitation Act of 1973 provides the same protections for federal employees and applicants for federal employment. Under the ADA, the determination of whether an individual has a disability is made on a case-by-case basis.
The EEOC enforces the employment provisions of the ADA. EEOC rules at 29 CFR 1614 govern the application of the employment provisions of the ADA to federal government workers in relation to the Rehabilitation Act.
Under amendments to the ADA made by P.L. 110-135 of 2008: the term “disability” is construed in favor of broad coverage of individuals; an impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability; an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and the determination of whether an impairment substantially limits a major life activity should be made without regard to the ameliorative effects of mitigating measures. The act also prohibits the use of qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless related to the position and consistent with business necessity.
The act further made conforming amendments to the Rehabilitation Act, extending the revisions to federal employees. General information is at www.eeoc.gov/laws/types/disability.cfm; also see Hiring of the Disabled under Special Recruitment, Hiring, and Placement Programs in Chapter 8, Section 1.
Applicants—The ADA does not require applicants to disclose that they have a disability unless they will need a reasonable accommodation for the application process. If an applicant voluntarily discloses a disability, an employer may ask only whether the person needs a reasonable accommodation, and if so, what type. The employer also must keep any information an applicant discloses about the medical condition confidential.
The ADA limits the medical information that an employer can seek from a job applicant. An employer may not ask questions about an applicant’s medical condition or require an applicant to take a medical examination before it makes a conditional job offer.
Post-Hiring—After making a job offer, an employer may ask questions about an applicant’s health and may require a medical examination as long as it treats all applicants the same. An employer may ask questions or require an employee to have a medical examination only when it has a legitimate reason to believe that the medical condition may be affecting the employee’s ability to do his/her job, or to do it safely.
The ADA requires employers to provide adjustments or modifications to enable people with disabilities to enjoy equal employment opportunities unless doing so would be an undue hardship (i.e., a significant difficulty or expense). A person may request an accommodation after becoming an employee even if he or she did not ask for one when applying for the job or after receiving the job offer.
Accommodations vary depending on the needs of an individual with a disability. If a requested accommodation is too difficult or expensive, an employer still would need to determine whether there is another easier or less costly accommodation that would meet the employee’s needs.
Reassignment to a vacant position for which the employee is qualified may be necessary where an employee no longer can perform the job, with or without reasonable accommodation, unless the employer can show that it would be an undue hardship. The new position should be equal in pay and status to the employee’s original position, or as close as possible if no equivalent position is available. The ADA allows employers to conduct voluntary medical examinations and activities, including obtaining voluntary medical histories, which are part of an employee health program as long as any medical records acquired as part of the program are kept confidential. Policies regarding use of leave as an accommodation are at www.eeoc.gov/eeoc/publications/ada-leave.cfm.
Epilepsy—Epilepsy may be a disability under the ADA because of limitations that occur as the result of seizures or because of side effects or complications that can result from medications. Under EEOC policy, epilepsy is a disability when it substantially limits one or more of a person’s major life activities. Major life activities are basic activities that an average person can perform with little or no difficulty, such as walking, seeing, hearing, speaking, breathing, performing manual tasks, caring for oneself, learning, and working. Major life activities also include thinking, concentrating, interacting with others, reproduction, and sleeping. Epilepsy also may be a disability because it was substantially limiting at some time in the past or when it does not significantly affect a person’s everyday activities, but the employer treats the individual as if it does.
Cancer—Cancer is a disability under the ADA when it or its side effects substantially limit(s) one or more of a person’s major life activities as described under Epilepsy, above. Even when the cancer itself does not substantially limit any major life activity (such as when it is diagnosed and treated early), it can lead to the occurrence of other impairments that may be disabilities. For example, depression may develop as a result of the cancer, the treatment for it, or both. Where the condition lasts more than several months and substantially limits a major life activity, it is a disability within the meaning of the ADA. Cancer also may be a disability because it was substantially limiting at some time in the past. Cancer is a disability when it does not significantly affect a person’s major life activities, but the employer treats the individual as if it does.
Hearing or Vision Impairment—A hearing or vision impairment is a disability if it substantially limits a major life activity, it was substantially limiting in the past, or an employer regards or treats an individual as having a substantially limiting impairment. Major life activities are those basic activities that an average person can perform with little or no difficulty. Whether impairment actually substantially limits a major life activity depends on how significant the loss is. The assessment of most impairment requires an individualized approach.
For vision impairment, although mitigating measures that the individual uses, such as corrective lenses and compensatory strategies that the body has developed, must be taken into account, they do not automatically exclude someone from coverage under the ADA’s definition of disability. Mitigating measures do not include devices, reasonable accommodations, or compensatory strategies that simply compensate for the fact that an individual is substantially limited in seeing. For example, a totally blind person still meets the ADA’s definition of “disability” even if he or she can move about freely with the use of a white cane or service animal, can work with assistive technology or a reader, and can use hearing to do what others can do using sight.
For hearing impairment, if an individual uses mitigating measures, such as hearing aids, cochlear implants, or other devices that improve hearing, these measures must be considered in determining whether the individual has a disability under the ADA. Even someone who uses a mitigating measure may have a disability if the measure does not correct the condition completely and substantial limitations remain, or if the mitigating measure itself imposes substantial limitations.
Association with Disabled Persons—The ADA prohibits employment discrimination based on a known relationship or association with a person with a known disability. This means that an employer is prohibited from making adverse employment decisions based on unfounded concerns about the known disability of a family member or anyone else with whom the applicant or employee has a relationship or association. The ADA does not require a family relationship for an individual to be protected by the association provision. The key is whether the employer is motivated by the individual’s relationship or association with a person who has a disability.
Caregiving Responsibilities—Although EEO laws do not prohibit discrimination against caregivers per se, there are circumstances in which discrimination against caregivers might constitute unlawful disparate treatment under Title VII or the ADA. These include: sex-based disparate treatment of female caregivers, focusing on sex-based stereotypes, stereotyping and other disparate treatment of pregnant workers; sex-based disparate treatment of male caregivers, such as the denial of childcare leave that is available to female workers; disparate treatment of women of color who have caregiving responsibilities; disparate treatment of a worker with caregiving responsibilities for an individual with a disability, such as a child or a parent; and harassment resulting in a hostile work environment for a worker with caregiving responsibilities. Title VII does not prohibit discrimination based solely on parental or other caregiver status, so an employer does not generally violate Title VII’s disparate treatment proscription if, for example, it treats working mothers and working fathers in a similar unfavorable (or favorable) manner as compared to childless workers.
Intellectual Disabilities—An individual generally is deemed to have an intellectual disability when: the person’s IQ is below 70-75; the person has significant limitations in basic conceptual, social and practical skills needed for everyday life; and the condition began before age 18. Such individuals may be found to have a disability within the meaning of the first part of the ADA’s definition of disability as substantially limited in brain function and major life activities; this also applies to someone who was misdiagnosed in the past as having such a disability. They may also be covered as someone “regarded as” disabled if an employer takes a prohibited action because of the condition or because the employer believes the person has the condition. (Note: An intellectual disability may qualify as a “targeted” disability under the Schedule A federal hiring policy; see Hiring of the Disabled under Special Recruitment, Hiring and Placement Programs in Chapter 8, Section 1.)
Diabetes—Persons with diabetes may be found to have a disability within the meaning of the ADA as substantially limited in the major life activity of endocrine function; this also applies to someone with a history of diabetes. They may also be covered as someone “regarded as” disabled if an employer takes a prohibited action because of the condition or because the employer believes the person has the condition.
Victims of Violence—The ADA prohibits different treatment or harassment at work based on an actual or perceived impairment resulting from domestic or dating violence, sexual assault or stalking. This could include, for example, a decision not to hire based on a concern regarding the applicant’s need for future time off due to continuing health conditions. The ADA also prohibits the disclosure of confidential medical information that an employer may learn regarding a victim.
HIV/AIDS—The ADA bars discrimination and harassment based on HIV/AIDS infection. Guidance on confidentiality, reasonable accommodation and other issues is at www.eeoc.gov/eeoc/publications/hiv_individual.cfm. Also see HIV/AIDS in the Workplace in Chapter 8, Section 4.
Mental Health Conditions—An individual can get a reasonable accommodation for any mental health condition that would, if left untreated, “substantially limit” the person’s ability to concentrate, interact with others, communicate, eat, sleep, care for one’s self, regulate one’s thoughts or emotions, or do any other “major life activity.”
The condition does not need to be permanent or severe to be “substantially limiting.” It may qualify by, for example, making activities more difficult, uncomfortable, or time-consuming to perform compared to the way that most people perform them. If the symptoms come and go, what matters is how limiting they would be when the symptoms are present. Mental health conditions such as major depression, post-traumatic stress disorder, bipolar disorder, schizophrenia, and obsessive compulsive disorder commonly qualify, and others may qualify as well.
Age Discrimination in Employment Act
Under the Age Discrimination in Employment Act of 1967 as amended in 1974 and 1978, discrimination in federal employment because of age is prohibited and agencies are required to assure that all personnel actions are free from age discrimination (discrimination against persons age 40 or older). The ADEA provides the right to go to court but is not specific as to time limits or conditions for filing civil actions after a complaint has been filed under administrative procedures. In addition, the ADEA provides direct access to the courts after a 30-day notice of intent to sue is filed with the EEOC, if the notice is filed within 180 days of the discriminatory act. See 29 CFR 1614.
In a 2008 decision, Gomez-Perez v. Potter, 200 U.S. 321, the U.S. Supreme Court held that federal employees have the right to pursue in federal court as well as before the EEOC allegations that they were retaliated against for filing an age discrimination complaint.
The ‘No Fear’ Act
The Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (“No Fear” Act), P.L. 107-174, set out requirements for the written notification of federal employees and applicants of their rights and remedies under anti-discrimination (and whistleblower protection) laws, including by posting that information on the Internet and requirements for employee training regarding such rights and remedies.
It further required agencies to produce annual reports that include: the number and status of cases arising under such laws and the amount of money involved; the number of employees disciplined for discrimination, retaliation, or harassment; data relating to complaints filed; agency policy relating to disciplinary actions against employees who discriminated or committed another prohibited personnel practice; and an analysis including an examination of trends, causes, practical knowledge gained through experience, and actions planned or taken to improve complaint or civil rights programs of the agency.
The law also:
• required agencies to post online data relating to equal employment opportunity complaints filed with the agency by employees or applicants, and required the EEOC to post data relating to hearings requested on such complaints and appeals filed with it from final agency actions;
• expressed the sense of Congress that federal agencies should not retaliate for court judgments or settlements relating to discrimination and whistleblower laws by targeting the claimant or other employees with reductions in compensation, benefits or work, and that they should ensure that managers have adequate training in the management of a diverse workforce and in dispute resolution; and
• required the amount of any claim, final judgment, award, or compromise settlement paid to any current or former federal employee or applicant in connection with specified anti-discrimination and whistleblower protection complaints to be reimbursed to the Treasury out of the operating expenses of the agency to which the discriminatory conduct is attributable. Agencies are expected to reimburse the general fund of the Treasury within a reasonable time. They should not use a reduction in force or furloughs as means of funding a reimbursement and may extend reimbursement over several years to avoid triggering such actions.
Ledbetter Fair Pay Act
Public Law 111-2, the Lilly Ledbetter Fair Pay Act of 2009, specified that each paycheck that delivers discriminatory compensation is a wrong actionable under the federal EEO statutes, regardless of when the discrimination began. Under the Act, an individual subjected to compensation discrimination under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, or the Americans with Disabilities Act of 1990 may file a charge within 180 days of any of the following (300 days in jurisdictions that have a local or state law prohibiting the same form of compensation discrimination):
• when a discriminatory compensation decision or other discriminatory practice affecting compensation is adopted;
• when the individual becomes subject to a discriminatory compensation decision or other discriminatory practice affecting compensation; or
• when the individual’s compensation is affected by the application of a discriminatory compensation decision or other discriminatory practice, including each time the individual receives compensation that is based in whole or part on such compensation decision or other practice.
Other Forms of Discrimination
The Civil Service Reform Act of 1978 prohibits employment discrimination in the federal government based on marital status or political affiliation or on the basis of conduct that does not adversely affect the performance of the applicant or employee. The prohibition of discrimination based on “conduct” includes discrimination based on sexual orientation or gender identity.
Executive Order 13087 of 1998 specified that it is the policy of the government to prohibit discrimination in employment because of sexual orientation; this applies to all policies and practices in the employment, development, advancement, and treatment of employees, to the extent permitted by law. A Presidential memo of June 17, 2009 further required all executive departments and agencies to comply with civil service laws, rules, and regulations, including 5 U.S.C. 2302(b)(10), that make it unlawful to discriminate against federal employees or applicants for federal employment on the basis of factors not related to job performance. Executive Order 13672 of 2014 expanded the 1998 order to specifically include gender identity.
The EEOC treats claims of discrimination based on sexual orientation or gender identity as claims of sex discrimination; see www.eeoc.gov/federal/directives/lgbt_complaint_processing.cfm. Also see the publication Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment at www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials.
Executive Order 13152 of 2000 states that it is the policy of the government to prohibit discrimination in employment based on an individual’s status as a parent. This applies to all policies and practices in the employment, development, advancement, and treatment of employees, to the extent permitted by law. An individual covered as a parent is someone who, with respect to an individual who is under the age of 18 or who is 18 or older but is incapable of self-care because of a physical or mental disability, is: a biological parent; an adoptive parent; a foster parent; a stepparent; a custodian of a legal ward; in loco parentis (in the place of a parent) over such an individual; or actively seeking legal custody or adoption of such an individual. While discrimination based on an individual’s status as a parent is not a covered basis under the laws enforced by the EEOC, there are circumstances where discrimination against caregivers may give rise to sex discrimination under Title VII or disability discrimination under the Americans With Disabilities Act.
Federal agencies have their own procedures for complaints of discrimination on any bases prohibited by these executive orders; in some cases employees may file complaints under both that process and EEOC’s process. In addition, employees should check their respective collective bargaining agreements and their agencies’ negotiated grievance procedures to determine whether grievance procedures can be invoked to address these issues; see Negotiated Grievance Procedures in Chapter 8, Section 6. Employees also may be eligible to bring a prohibited personnel practice complaint under 5 U.S.C. 2302(b)(10); see Prohibited Personnel Practices in Section 3 of this chapter.
Complaint and Appeal Procedures
If you, as a federal employee, applicant or former employee believe you have been subjected to prohibited discrimination you can file an EEO complaint. There are several steps of the EEO complaint and appeals process, including pre-complaint processing, the formal complaint stage, and the hearing, decision, and appeals process, as described below (note: in practice, the time limits listed commonly are exceeded). Alternative dispute resolution procedures may be available at both the pre-complaint and post-filing stages as described in Section 7 in this chapter.
Employees are encouraged to submit filings electronically. The EEOC Public portal (https://publicportal.eeoc.gov) allows current and former federal employees and applicants to create an account in which they can: appeal a final decision in a discrimination complaint issued by an employing agency, an arbitrator or the Merit Systems Protection Board; designate a representative; submit documents and other information; check the status of their cases; respond to an invitation to participate in alternative dispute resolution, and more. (Note: The separate Federal Sector EEO Portal at www.eeoc.gov/federal/fedsep.cfm is for filings by agencies.)
An agency may summarily dismiss a complaint alleging that a proposal or preliminary step to taking a personnel action is discriminatory, unless you allege that the agency is acting: in retaliation because you had engaged in prior EEO activity or because you had opposed a practice that you believed violated one of the federal EEO laws; or to dissuade you, or a reasonable person in your circumstances, from engaging in protected EEO activity.
• EEO Counseling—As a discrimination complainant, you must, as a first step, discuss the problem with an equal employment opportunity counselor—an employee of your agency—within 45 days of the alleged discriminatory act or the effective date of a personnel action. Counseling must be completed within 30 days of the date you contact the agency’s EEO office with your counseling request. If the matter is not resolved, the EEO counselor will notify you in writing of your right to file a formal discrimination complaint. The EEO counselor’s responsibilities include: providing complainants with written notice of their EEO rights and obligations under federal law, including their general right (applying to most non-postal workers) to choose between the EEOC process and a contractual grievance procedure, if available; help complainants identify and determine the basis and issues of their claim (while avoiding “fragmentation” of the claim—see below); conducting a limited inquiry to uncover information needed, for example, to help resolve any jurisdictional questions; facilitating efforts to resolve the problem by listening to and understanding the viewpoints of both parties; holding a final interview with the complainant within 30 days, if an informal resolution is not possible and the aggrieved person has not consented to an extension (not to exceed 60 days); and notifying the employee in writing of the individual’s right to file a formal complaint. At the initial counseling session or within a “reasonable time,” the EEO counselor should inform employees of their right to have their charges handled through the agency’s traditional counseling process or through the alternative dispute resolution procedure, if the agency offers it.
• Formal Complaint—You must file a formal complaint with the agency that allegedly discriminated against you within 15 days of receiving the notice of your rights from your EEO counselor. The agency must acknowledge receipt of this formal complaint. In addition to this acknowledgment letter, the agency also should send the complainant an “acceptance letter,” stating the claims asserted by the worker that will be investigated by the agency. If the agency dismisses all of the complaint, you will be notified in writing of your right to appeal to EEOC’s Office of Federal Operations within 30 days of receipt of the agency’s dismissal. In such situations, the EEOC may determine that the dismissal was improper, reverse the action, and remand the matter back to the agency for completion of the investigation.
If the agency does not dismiss the complaint, it must conduct and complete an impartial and appropriate investigation within 180 days of the filing of the complaint, unless the parties agree in writing to extend the period. If an agency does not complete its investigation within the required period, it must issue a written notice informing you of its failure and must provide an estimated date to complete its investigation. The notice also must explain that if you do not want to wait until the agency completes the investigation, you may instead request a hearing or file a civil action in the appropriate federal district court. If you request a final decision without a hearing, the agency must take final action by issuing a decision within 60 days. Complainants who request an agency final decision without a hearing have the right to appeal the agency’s decision, including a partial dismissal, to EEOC.
• EEOC Hearing—Following completion of the investigation, you have the right to request a hearing by an EEOC administrative judge. Even if the agency has not completed its investigation, you have the right to request a hearing any time after 180 days from the date the complaint was filed. If a hearing is requested, an EEOC administrative judge must issue a decision within 180 days from the day the complaint file was received from the agency. Agencies cannot reverse or overturn an EEOC AJ’s decision. After the AJ issues a decision, the agency must issue a final order within 40 days, indicating whether it will “fully implement” the AJ’s ruling or whether it will appeal that decision to EEOC. (“Fully implement” means that the agency agrees to adopt the AJ’s decision without any modification; unless they appeal, agencies must provide the ordered relief within 120 days). If the agency does not fully implement the AJ’s decision, it must file an appeal to EEOC and provide the complainant with notification of its decision and action. Complainants have 30 days from receiving notice of the agency’s implementation decision to file an appeal with EEOC.
• Complainant’s Appeal Rights—If you’ve requested a final agency decision without a hearing and are not satisfied with the agency’s final action on your complaint, you may appeal either to the EEOC within 30 calendar days of your receipt of the final action or file a civil action in a U.S. district court within 90 calendar days of your receipt of the final action. If you appeal to the EEOC and are dissatisfied with the decision on appeal, you may file a civil action within 90 days of your receipt of EEOC’s final decision. You may also file a civil action after 180 calendar days from the date on which the complaint was filed if the agency has not taken final action on your complaint. You may also file suit after 180 days from appeal to the EEOC when no decision has been made. You have the right to be represented at any stage of the process, including the counseling stage.
Prior to filing a civil action in federal court under Title VII of the Civil Rights Act of 1964 or the Rehabilitation Act of 1973, a federal sector complainant must first exhaust the administrative process at 29 CFR 1614 as described above. “Exhaustion” for the purposes of filing a civil action may occur at different stages of the process. The regulations provide that civil actions may be filed in an appropriate federal court: within 90 days of receipt of the final action where no administrative appeal has been filed; after 180 days from the date of filing a complaint if an administrative appeal has not been filed and final action has not been taken; within 90 days of receipt of the EEOC’s final decision on an appeal; or after 180 days from the filing of an appeal with the EEOC if there has been no final decision by the EEOC.
Under the Age Discrimination in Employment Act, you may proceed directly to federal court after giving the EEOC notice of your intent to sue under 29 CFR 1614.201. If you initiate the administrative process in 29 CFR 1614, you may also filed a civil action within the time frames noted above, under 29 CFR 1614.408.
Under the Equal Pay Act, you may file a civil action within two years (three years for willful violations), regardless of whether you have pursued an administrative complaint under 29 CFR 1614.409.
Filing a civil action terminates the EEOC’s processing of an appeal under 29 CFR 1614.410.
If you are covered by a collective bargaining agreement that permits allegations of discrimination to be raised in a grievance procedure (see Negotiated Grievance Procedures in Chapter 8, Section 6), you may bring such an allegation either under that procedure or the procedures of 29 CFR 1614, but not both. An election to proceed under Part 1614 is made by the filing of a complaint, and an election to proceed under the negotiated grievance procedures is made by filing a grievance. Participation in the pre-complaint procedures of Part 1614 is not an election of the Part 1614 procedures. The election requirement does not apply to employees of agencies not covered by 5 U.S.C. 7121(d), notably employees of the U.S. Postal Service.
Some employment actions that may be the subject of a discrimination complaint under 29 CFR 1614 may also be appealed to the Merit Systems Protection Board (see Section 3 of this chapter). In such cases, you may elect to proceed with a complaint as a “mixed case complaint” under Part 1614 or a “mixed case appeal” before the MSPB. Whichever is filed first is considered an election to proceed in that forum.
Mixed case complaints at EEOC are processed similarly to other complaints of discrimination, with the following notable exceptions: the agency has only 120 days from the date of the filing of the mixed case complaint to issue a final decision, and you may appeal the matter to the MSPB or file a civil action in federal court any time thereafter; you must appeal the agency’s decision to the MSPB, not the EEOC, within 30 days of receipt of the agency’s decision; at the completion of the investigation, you do not have the right to request a hearing before an EEOC administrative judge; and the agency must issue a decision within 45 days.
If you have filed either a mixed case complaint or a mixed case appeal and have received a final decision from the MSPB, you may petition the EEOC to review the MSPB’s final decision.
In contrast to non-mixed matters, if you wish to file a civil action in mixed-case matters, you must file within 30 days (not 90 days) of receipt of the agency’s final decision, the MSPB’s final decision, or the EEOC’s decision on a petition to review. Alternatively, a civil action may be filed after 120 days from the date of filing the mixed case complaint with the agency or the mixed case appeal with the MSPB if there has been no final decision on the complaint or appeal, or 180 days after filing a petition to review with the EEOC if there has been no decision by the EEOC on the petition.
The EEOC rules contain a number of provisions designed to discourage or prevent fragmentation, including procedures making it easier to amend complaints to include discriminatory actions related, but subsequent, to an individual’s existing claim. Similarly, consolidation rules permit independent claims brought by the same complaining party to be joined together for processing. The rules also include procedures related to:
Appeal rights from partial dismissals are not allowed. Instead, the case will continue to be processed and appeals are preserved until the rest of the case is ready for appeal.
The rules provide for the dismissal of spin-off complaints (i.e., complaints about the processing of an existing complaint), and specify that complaints about existing complaints should be brought up as part of the original complaint.
Class complaints of discrimination under 29 CFR 1614.204 are processed differently than individual complaints. The employee or applicant who wishes to file a class complaint must first seek counseling and be counseled, just like an individual complaint. However, once counseling is completed the class complaint is not investigated by the respondent agency. Rather, the complaint is forwarded to the applicable EEOC field or district office, where an EEOC administrative judge is appointed to make decision as to whether to accept or dismiss the class complaint. The AJ examines the class to determine whether it meets the class certification requirements of numerosity, commonality, typicality and adequacy of representation. The AJ may issue a decision dismissing the class because it fails to meet any of these requirements, as well as for any of the reasons for dismissal of individual complaints.
A class complaint may begin as an individual complaint of discrimination. A complainant may move for class certification at any reasonable point in the process when it becomes apparent that there are wider implications to the claims raised in an individual complaint.
The AJ transmits his or her decision to accept or dismiss a class complaint to the class agent and the agency. The agency must then take final action by issuing a final order within 40 days of receipt of the AJ's decision. The final order must notify the agent whether or not the agency will implement the decision of the AJ. If the agency's final order does not implement the AJ's decision, the agency must simultaneously appeal the AJ's decision to EEOC's Office of Federal Operations. A dismissal of a class complaint must inform the class agent either that the complaint is being filed on that date as an individual complaint and processed accordingly, or that the complaint is also dismissed as an individual complaint. In addition, a dismissal must inform the class agent of the right to appeal to EEOC's OFO or to file a civil action in federal court.
After an EEOC administrative judge decides whether to accept or dismiss a class complaint, either the agency or the class agent can appeal that decision. EEOC’s standard for processing an appeal of the acceptance or dismissal of a class complaint is 90 days.
When a class complaint is accepted, the agency must use reasonable means to notify the class members and provide a description of the issues accepted, an explanation of the binding nature of the final decision or resolution on the class members, and the name, address and telephone number of the class representative. In lieu of an investigation by the respondent agency, an EEOC AJ develops the record through discovery and a hearing.
An AJ’s decision on the merits of a class complaint is a final decision, which the agency can fully implement or appeal in its final action. When discrimination is found:
• Class members who believe that they are entitled to relief may file a written claim with the agency within 30 days of receipt of notification by the agency of its final decision. The EEOC AJ retains jurisdiction over the complaint in order to resolve disputed claims by class members. The claim for relief must contain a specific showing that the claimant is a class member entitled to relief.
• There is a presumption of discrimination as to each member of the class. The agency must show by clear and convincing evidence that any class member is not entitled to relief, within 90 days of the filing. Such decision may be appealed to EEOC or federal court.
A class complaint may be resolved at any time by agreement between the agency and the class agent. Notice of such resolution must be provided to all class members and reviewed and approved by an EEOC AJ. If the AJ finds that the proposed resolution is not fair to the class as a whole, the AJ will issue a decision vacating the agreement, and may replace the class agent with some other eligible class member to further process the class complaint. That decision may be appealed to EEOC. If the AJ finds that the resolution is fair to the class as a whole, the resolution is binding on all class members.
Attorney’s Fee Awards
Under EEOC’s rules, complainants who successfully pursue discrimination charges against a federal agency may be entitled to an award of attorney’s fees. The Commission’s administrative judges generally are responsible for determining the amount.
An attorney’s fee award also may be available for work performed during the pre-complaint process. Fees will be available for legal work done before a complaint is filed, according to the EEOC rules, in the “limited circumstances” where a complaining party prevails in a hearing, the agency chooses not to fully implement the administrative judge’s decision, and the Commission subsequently finds in favor of the complaining party. Additionally, agencies and complaining parties may include attorney’s fees for pre-complaint work in a settlement agreement.
However, complainants risk losing any possible entitlement to attorney’s fee payments in situations where they refuse to accept an agency’s “offer of resolution.” Under this procedure, which is designed to encourage settlements of EEO complaints, an agency may decide to make an offer of resolution to a complaining party. If the complainant does not accept the offer and ultimately obtains no more relief than what was offered, no attorney’s fees or costs will be payable for legal work done after the offer was rejected.
Section 102 of the Civil Rights Act of 1991 permits a complaining party pursuing a claim under Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, or the Rehabilitation Act of 1973, to recover compensatory and punitive damages in the case of intentional discrimination. Compensatory damages awards can range up to $300,000. However, punitive damages are not available against governmental entities. In court actions, any party may demand a jury trial when a complainant is seeking either compensatory or punitive damages.