You were just passed up for promotion and you believe it was because of discrimination, what should you do? Any attorney worth their weight should tell you up front the hard facts of your case. For federal employees who fall victim to discrimination or harassment, it means facing an uphill – and potentially expensive – battle towards justice with no guarantee of success, no matter how egregious the wrongdoing. In the best-case scenario, you will be forced to re-live the trauma of their mistreatment repeatedly until the Agency agrees it was wrong (it does happen), settles, or a factfinder rules in your favor. Everything must go right to obtain a positive result.
As any employee who has gone through the process will agree, there is a lot that can go wrong. The employee may not know which of the numerous agencies they should file a complaint with, forever losing their chance to have their case heard if they guess wrong. The Agency may delay its investigation while discriminators retire before giving any statement, all but eliminating a key source of information to build a case. The employee may be assigned an EEOC administrative judge notorious for ruling against employees. Clearly, there is room for improvement in how we as a country treat our federal employees who believe they were wronged. Here are just a few suggestions of how Congress, Agencies, and the President could bend the arc toward justice in the workplace for federal employees.
- Increase the Window for Federal Employees to Initiate Counseling
Federal employees have just 45 days from the date of a discriminatory event to contact an EEO counselor, which they must do in order to file a complaint. If they contact the counselor on day 46, they have already lost. Employees in the private sector have up to 240 days to file their complaint, and there is no reason federal employees should not receive that same amount of time. Consider an employee who is sexually assaulted by a supervisor at work. This is a traumatic and disorienting experience and any reasonable person may need time to recover and re-orient before they can fully appreciate what happened. If she takes too long to decide to seek justice, her harasser will walk without consequence – maybe even get promoted – and she will be forced to endure the humiliation. Our laws should take into account the victims’ reality and give them more time to initiate a complaint before denying them the opportunity to obtain justice.
- Expand What Constitutes a Timely Complaint and Enforce Time Constraints Equally
Note that the above requires the employee to contact an EEO counselor. Even if the employee who was assaulted contacted other supervisors in her chain of command, the Agency’s Office of Inspector General, AND the Agency’s Office of Professional Responsibility (or related entity), it doesn’t count. The employee loses if they don’t talk to the EEO Counselor (or at least contact the EEO Office and ask for one) by day 45. They have to say the magic words to the specific person, or else. A victim should be able to satisfy the reporting requirement by raising the issue with any supervisor or investigator, and the person to whom the employee complains must ensure the complainant is given sufficient information to proceed through the proper channels—failure to do so should be held against the Agency, not the victim. We simply cannot deny justice because victims went to supervisors they know and trust rather than a person with whom they never interact.
Part of the rationale of the early reporting requirement is to enable the Agency to investigate and resolve the issue quickly. But this is a double-edged sword with only one sharp edge. The 45-day contact requirement is found in the EEOC’s regulations. Those regulations also require that an Agency complete its investigation of the employee’s complaint within 180 days of the date the formal complaint is filed. If an Agency fails to meet that deadline, it may be sanctioned, including with a ruling in the employee’s favor in egregious cases. Speaking from experience, there are cases in which the Agency doesn’t even assign an investigator until well after the 180-day deadline passes, harassers retire in the meantime, but the EEOC declines to impose any sanction. The regulations imposing time limits should be enforced uniformly, with Agencies held accountable for the applicable deadlines with as much force and certainty as the victims who complain.
- Track Administrative Judge Performance and Increase Accountability on the Bench
In order to ensure deadlines are being enforced, the EEOC needs to track those who decide whether to enforce them—the EEO administrative judges. Decades ago, Syracuse University began tracking judge-by-judge data on all federal criminal and civil court actions. The goal – and the result – is that government oversight bodies and the public can ensure that judges are not so one-sided that they come out against the defendant 99.9% of the time, for example. There is no reason we cannot do the same for the administrative judges hearing EEO complaints filed by federal employees.
Seasoned federal sector employment attorneys – both for complainants and Agencies – are well aware of the reputations of many of the EEOC’s administrative judges. There are some who take pride in never ruling in favor of an employee. At the 2021 EEOC annual meeting, the Commission stated that 97.2%% of administrative judge decisions are upheld on appeal. Of the 1,277 decisions reviewed, 1,241 were affirmed and only 36 were modified or reversed. Additionally, each judge carries between 100 and 200 cases at any given time, so they are motivated to dismiss cases as soon as possible to maintain a reasonable workload. This is not an environment in which any person can thoughtfully consider the facts and apply the law. It is therefore absolutely vital that there are sufficient judges to ensure they can approach cases objectively, based on the facts of the case, and applying the law correctly. Collecting data on each specific administrative judge is the necessary first step in doing so. Otherwise, the Commission will allow administrative judges it knows are inadequate to serve life terms until they retire without ever second-guessing their rulings.
- Simplify the Process
Suppose an employee reports discriminatory harassment and is then suspended for 14 days and believes it is retaliation for her report. She should file an EEO complaint. But if she’s suspended for 15 or more days, she has to go through a whole different agency – the Merit Systems Protection Board. Perhaps she is a member of a union, in which case she may choose to file a grievance and arbitrate her case, but doing so means she loses her right to file with the EEOC or MSPB. What if she reported a supervisor for breaking the law? Then she would be a whistleblower and should report it to the Office of Special Counsel and maybe the Agency’s Office of Inspector General. Still tracking? If not, don’t worry, even the United States Supreme Court described some of these processes and pointed out that “[i]f you need to take a deep breath after all that, you’re not alone.” Kloeckner v. Solis, 568 U.S. 41, 52 (2012).
The point is, there are numerous options when a federal employee experiences or witnesses wrongdoing. We can and should consolidate these entities to make it easier for employees to seek justice. Streamlining this process would save the government money by avoiding wasted resources on a matter that should be before another administrative body and would promote a more efficient and just outcome by ensuring that each meritorious complaint makes it to a speedy hearing and resolution. Employees should not be left to guess where to file and their cases should not be prejudiced because they went to the wrong entity.
As the above makes clear, the facts of your case matter, but the decision of what to do with those facts and when is make or break. Congress and President Biden should review and begin taking immediate steps to ensure that federal employees who fall victim to unlawful treatment in the workplace have a fair and realistic opportunity for justice. Until they do, any employee who believes they may have been victim to unlawful treatment at work should immediately seek out the help of an attorney specializing in this area to find out what options they have before the clock runs out. Kalijarvi, Chuzi, Newman & Fitch, P.C. is just such a firm that is ready, willing, and able to assist employees who want to know and assert their rights—our civil rights laws only function if we choose to stand up and enforce them.