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Office of Civil Rights
Discrimination Complaint Process
  

Discrimination Complaint Process

This document outlines steps in the discrimination complaint process in accordance with 29 C.F.R. § 1614. A complaint must abide by this process, but an individual may at any time before or during the process opt to resolve the matter with the Department.

Policy

The policy of the U.S. Department of State is to provide equal opportunity in employment to all persons without regard to race, color, religion, sex, national origin, age, disability, or sexual orientation; and to achieve equal employment opportunity (EEO) in the workplace through an ongoing and continuous affirmative outreach program. The Office of Civil Rights (S/OCR) administers and oversees the Department's EEO program.

The policy of the U.S. Department of State is also to provide equal opportunity in employment to all persons without regard to marital status, political affiliation, or protected genetic information. The Department's EEO complaints process, however, is not available to resolve such complaints. Instead, individuals should avail themselves of the appropriate grievance procedures, prohibited personnel practice remedies, and/or courts for relief.

No person shall be subject to retaliation for opposing any practice made unlawful by Title VII of the Civil Rights Act of 1964, as amended (Title VII), the Age Discrimination in Employment Act, as amended (ADEA), the Equal Pay Act of 1963, as amended, the Rehabilitation Act of 1973, as amended, or for participating in any stages of the administrative or judicial proceedings under these statutes.

Political appointees, supervisors, managers, employees, contractors, and all individuals subject to Department of State supervision or control are required to cooperate with S/OCR and its authorized agents who conduct inquiry and investigation as part of the EEO process. Failure to do so could subject the Secretary of State to liability for discrimination based on an adverse inference and the individual at issue to administrative sanctions, including discipline up to and including dismissal.

Applicability

The discrimination complaint process administered by S/OCR is an administrative process to resolve disputes alleging acts of employment discrimination prohibited by equal employment opportunity (EEO) laws and regulations. It is available to any U.S. citizen employee or applicant for employment who alleges he/she has been subjected to unlawful discrimination based on race, color, religion, sex, national origin, age, disability, or sexual orientation.

Employees who are covered by negotiated grievance procedures may also seek redress for allegations of discrimination, provided the collective bargaining agreement under which they are covered permits the exercise of such an option. Visit the website of the Grievance Staff, Bureau of Human Resources (HR/G) for more information

Foreign Service Nationals (FSNs): For information about the Department's non-discrimination policy, practices, and protections for Foreign Service Nationals (FSNs), visit the website of the Office of Overseas Employment, Bureau of Human Resources (HR/OE) for more information.

Sexual orientation: Department policy prohibits discrimination based on sexual orientation. An employee or applicant for employment who feels that he/she has been discriminated against on the basis of sexual orientation may file a complaint pursuant to the Department's administrative procedures (3 FAH-1 H-1520) or directly with the Office of Special Counsel, an independent agency with jurisdiction over allegations of discrimination based on sexual orientation. Employees also have the option of pursuing redress for issues related to sexual orientation through an appropriate grievance procedure.

Pre-Complaint Processing

Contacting an EEO Counselor is the first step in the discrimination complaint process. The purpose of EEO counseling is to attempt early and informal resolution of an allegation of discrimination. An EEO Counselor represents neither the complainant nor management, nor does an EEO Counselor serve as an investigator or advocate. An EEO Counselor will answer questions about the discrimination complaint process and explain available options for seeking resolution. An EEO Counselor is trained to conduct inquiries into allegations of discrimination in an effort to resolve the matter before a formal complaint is filed.

An aggrieved person must consult with an EEO Counselor within 45 days of an alleged discriminatory act, the effective date of an alleged discriminatory personnel action, or the date on which the person learned or reasonably should have known of the discriminatory act or personnel action. Rosters of the EEO Counselors, both domestic and overseas, are updated periodically, disseminated throughout the Department and posted in prominent places. If you have an allegation of discrimination, you may either contact a Counselor directly or may contact the Office of Civil Rights at (202) 647-9295 to have an available Counselor assigned to you.

If an aggrieved person decides to pursue pre-complaint counseling, the EEO Counselor will make inquires to determine the facts and attempt to resolve the matter informally. If the matter is not resolved within 30 days (or within 90 days if the counseling period is extended in writing by mutual agreement), the aggrieved person will be issued a written notice advising of the right to file a formal complaint.

If the aggrieved person has made good faith efforts to obtain the assistance of an EEO Counselor to resolve an allegation of discrimination but has neither received notification of the right to file a discrimination complaint nor granted an extension of time to conduct counseling, the aggrieved person has the right to file a formal complaint after the 30th day following EEO Counselor contact has passed.

S/OCR's Alternative Dispute Resolution Program (ADR)

S/OCR's Alternative Dispute Resolution Program (ADR) is not designed to replace the administrative EEO process but to provide an alternative to traditional administrative avenues to resolve the matters at issue. EEO Counselors are required to advise an aggrieved person in writing that he/she may elect to participate in S/OCR's ADR Program without forfeiting the right to pursue a formal complaint through the administrative EEO process should the ADR process fail to result in resolution.

Further information regarding S/OCR's ADR Program is available from S/OCR's Intake and Resolution Section at (202) 647-9295.

Filing a Complaint of Discrimination

If following either traditional EEO Counseling or participation in the ADR program the allegation(s) of discrimination has/have not been resolved, an aggrieved person may elect to file a formal complaint. It must be filed in writing with S/OCR within 15 calendar days of receiving the “Notice of Right to File a Discrimination Complaint” from an EEO Counselor or following the conclusion of participation in the ADR Program. Only the matter(s) raised in pre-complaint counseling may be included in a formal EEO complaint.

S/OCR acknowledges receipt of a formal EEO complaint in writing. S/OCR also informs the complainant by a separate letter of the issue(s) accepted for further processing and/or that one or more of the issues will not be processed and the reasons thereof. In the case of a full or partial dismissal, the complainant is notified in writing of the right to appeal the dismissal to the Equal Employment Opportunity Commission (EEOC), Office of Federal Operations, within specified time limits established by EEOC's regulations.

Investigation of a Discrimination Complaint

S/OCR is required to conduct a complete and impartial investigation of all issues accepted for processing within 180 days of the date the complaint was filed. An EEO Investigator gathers evidence relevant to the accepted issues from the complainant and witnesses in accordance with regulations set forth by the EEOC. Witness statements, whether resulting from an oral interview with the investigator or from responses to written requests for information, must be made under oath or affirmation and signed as being true and correct for eventual inclusion in the written record.

By written mutual agreement and within the time limit authorized by regulation, the complainant and S/OCR may voluntarily extend the time period for the investigation an additional 90 days.

Provided the complainant is notified in advance, S/OCR may unilaterally extend the time limit for producing the written investigation by not more than 30 days when it is necessary to sanitize a complaint file that contains information classified pursuant to Executive Order 12958.

Complainant's Responsibilities

  • To keep the Department informed of his/her current mailing address during the administrative processing of an informal or formal complaint.
  • To provide a copy of any appeal papers sent to the Equal Employment Opportunity Commission (EEOC) to the Director of S/OCR at the time that he/she files an appeal with the EEOC. In or attached to the appeal to EEOC, the complainant must certify the date and method by which such copy was sent to the Director of Civil Rights on behalf of the Department of State.

Complainant's Rights

  • To receive a copy of the completed written investigative file, known as the Report of Investigation (ROI).
  • To be accompanied, advised, and represented at any stage in the complaint process, including the counseling stage. The representative does not have to be an attorney. S/OCR must be informed immediately when counsel or a representative has been appointed.
  • To choose to remain anonymous during the pre-complaint counseling process. Depending on the situation, anonymity may hinder resolution of the matter.
  • To request a hearing before an administrative judge,[1] or to waive that right and request a Final Agency Decision (FAD) from the Department within 30 days after receipt of a copy of the ROI and notification of 29 C.F.R. § 1614 procedural rights and responsibilities.
  • To request a hearing at any time after 180 days have elapsed from the filing of the complaint.

Election of Remedies

Employees Covered by Collective Bargaining Agreements
Employees covered by a collective bargaining agreement that permits allegations of discrimination to be raised in a negotiated grievance procedure must elect initially to pursue a matter that is both grievable and allegedly discriminatory through either the negotiated grievance procedure or the S/OCR discrimination complaints process, but not both. The following organizations are recognized by the Department as exclusive bargaining unit representatives:

  • American Foreign Service Association (AFSA) represents all Foreign Service employees worldwide, except Foreign Service Nationals (FSNs).
  • American Federation of Government Employees (AFGE), Local 1534, represents Civil Service employees of the Office of Multi-Media Services, language and cultural instructors of the Foreign Service Institute, and employees in professional job occupational series in the Washington Metropolitan area. AFGE Local 1534 also represents all Civil Service employees of the Department who are employed in the Washington Metropolitan area, excluding supervisors, managers, and employees otherwise covered by an exclusive representative.
  • National Federation of Federal Employees (NFFE), Local 1998 represents Passport Services employees nationwide.
  • American Federation of Government Employees (AFGE), Local 3309 represents Visa Examiners in Juarez, Mexico.
  • American Federation of Government Employees (AFGE), Local 3273 represents Visa Examiners in Tijuana, Mexico.

An aggrieved employee who files a discrimination complaint with S/OCR may not thereafter file a grievance with HR/G or the union on the same matter, or vice versa. On issues alleging illegal discrimination, a Civil Service (CS) grievant has the right to appeal to the EEOC from a final arbitration decision; Foreign Service grievants have the right to go from the Foreign Service Grievance Board to an appropriate U.S. District Court.

Age Discrimination

Under the Age Discrimination in Employment Act of 1967 (ADEA), an aggrieved person may file either an administrative discrimination complaint based on age or file a civil action in a U.S. District Court. If an individual chooses to pursue an age complaint directly in District Court, he/she must give the EEOC not less than 30 days notice of intent to file such an action. The notice must be filed in writing within 180 days of the occurrence of the alleged discriminatory action.

Equal Pay Act Complaints

The Fair Labor Standards Act of 1938, as amended by the Equal Pay Act of 1963 (EPA), prohibits sex-based wage discrimination. The EPA prohibits paying one sex less than the other sex for performing substantially equal work. “Substantially equal work” refers to jobs that require equal skills, effort, and responsibility when the jobs are performed under similar working conditions. EPA complaints do not address whether two jobs, which may be similar in function or contribution but require different skills, effort, and responsibility, are actually of “comparable worth.”

EPA claims of wage discrimination are processed as claims of discrimination based on sex under the discrimination complaints process. As with ADEA cases, a complainant has the option of bypassing the administrative complaints process and proceeding directly to U.S. District Court.

Class Complaints

A “class” is defined as a group of similarly situated persons who allege its members have been adversely affected in a substantially similar way such that it would be administratively more efficient to hear their claims together as one case.

Class complaints are subject to EEOC scrutiny to determine whether the allegations at issue are appropriate for class rather than individual complaint processing.

Employees or applicants who wish to file a class complaint must first contact an EEO Counselor within 45 days of the date that the class agent suffered discrimination by the Department, or if a personnel action is at issue, within 45 days following its effective date. In presenting a class complaint, the class agent or representative must identify the policy or practice adversely affecting the class as well as the specific action or matter affecting the class agent.

Civil Action

A complainant who has filed an individual complaint, an agent who has filed a class complaint, or a claimant who has filed a claim for individual relief pursuant to a class complaint may file a civil action in an appropriate United States District Court when the following conditions and time limits are met:

  • Within 90 days of receipt of the Final Agency Decision (FAD) on an individual or class complaint if no appeal has been filed with the EEOC;
  • After 180 days of the date of filing an individual or class complaint, if no appeal has been filed with the EEOC;
  • Within 90 days of receipt of the EEOC's Final Decision on an appeal; or
  • After 180 days of the date of filing an appeal with the EEOC, if there has been no Final Decision on the appeal.

Questions concerning the discrimination complaint process should be addressed to:

U.S. Department of State
Office of Civil Rights (S/OCR)
Intake and Resolution Section
2201 C St., NW, Rm 7428
Washington, D.C. 20520
Phone: (202) 647-9295
Fax: (202) 647-4969
E-Mail: SOCR_Direct@state.gov



[1] Not applicable to complaints based on sexual orientation because the Equal Employment Opportunity Commission does not have jurisdiction over such complaints.

  
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