The EEO Complaint Process - Decision Stage
As I’ve mentioned, there are some key differences in the process for federal and non-federal/private employers in the EEO Complaint Process. Keep an eye out for those differences as they apply to you. And for a visual summary, see my Federal & Non-Federal EEO Complaint Process Flow Charts.
In the decision stage, information from the EEO investigation is used to determine which direction the case moves. Here are a few points to help you know what to expect during the decision stage:
After the Investigation Report is Issued
Federal EEO Complaint Process: The EEO issues an investigation report, but does not make a final determination on whether or not your employer is at fault. Rather, you are given two options on how to proceed from here:
Request an EEO hearing
For this option, you can request a hearing with an EEOC Administrative Judge. The judge will conduct the hearing, make a decision, and order relief if discrimination is found.
If you want to ask for a hearing, you must make your request in writing or via the EEOC Public Portal. In the portal, you can also upload hearing requests, and manage your personal and representative information within 30 days from the day you receive the notice from the agency about your hearing rights.
Once the agency receives the Administrative Judge's decision, the agency will issue what is called a “final order” which will tell you whether the agency agrees with the Administrative Judge, and if it will grant any relief the judge ordered. The agency will have 40 days to issue the final order. It will also contain information about your right to appeal to EEOC, your right to file a civil action in federal district court, and the deadline for filing both an appeal and a civil action.
Request a final agency decision
For this option, your federal agency will be given 60 days to issue a decision on whether or not discrimination is found. If you disagree with some part of the decision, you can appeal the decision to EEOC, or file a lawsuit to challenge it in federal district court.
My attorney and I opted to request an agency decision. We decided on this route because we were fairly certain that neither the EEO judge, nor the agency, would come to any worthwhile conclusions or remedies, and thus, we’d end up filing a case with the U.S. District Court anyway. In addition, the EEO hearing would likely require a great deal of effort to prepare evidence and consult witnesses. It would also take 180 days. Requesting an agency decision however, didn’t require any effort on our part, and was only 60 days. Given this, we decided to save our time, energy, and witnesses for our case with the U.S. District Court. In other words, we decided to play the long game. My EEO case is currently in the agency decision phase. If we aren’t satisfied with the agency’s decision, we’ll notify the agency and my EEO Counselor, and the EEO office will send us a Notice of Right to Sue in U.S. Civil District Court,
Non-Federal EEO Complaint Process: The direction your case moves will be determined based on whether the EEO found your employer to be in violation of the law.
If the EEO determines that a violation of the law is not found, they will issue Notice of Right to Sue to you and your complaint will be closed within the EEO.
If the EEO determines that a violation of the law is found, both parties will be issued a "Letter of Determination" inviting them to settle the charge through an informal and confidential process known as conciliation. If the conciliation attempt with your employer fails, the EEO will decide whether or not they will file a lawsuit in courts based on your charge. This decision will depend on the seriousness of the violation, the type of legal issues in the case, whether the lawsuit could impact the agency's efforts to combat workplace discrimination, and the resources available to litigate the case effectively.
In reality, however, the percentage of EEO cases that the EEO then decides to file as lawsuits is relatively low — the EEO filed lawsuits after unsuccessful conciliations only 8.6% of the time in 2020 and 12.4% of the time in 2021.
Settlements Outside of the EEO Complaint Process
Keep in mind that, at any point during the EEO complaint process - even before the investigation is complete - you and your employer can reach a settlement outside of the EEO involvement. In turn, this would automatically close your EEO case.
Filing a Lawsuit (outside of the EEO complaint process)
Federal EEO Complaint Process: You must go through the administrative EEO complaint process before you can file a lawsuit. You will only be given the opportunity to file a lawsuit in the U.S. District Court:
After 180 days have passed from the day you filed your complaint, if the agency has not issued a decision and no appeal has been filed.
Within 90 days from the day you received the agency's decision on your complaint, so long as no appeal has been filed
After the 180 days from the day you filed your appeal if the EEOC has not issued a decision; or
Within 90 days from the day you receive the EEOC's decision on your appeal.
Non-Federal EEO Complaint Process: Those with non-federal employers can also request a Notice of Right to Sue to file a lawsuit in the U.S. District Court at any point.
Non-disclosures
As always, if you do find yourself in conciliation negotiations, do not sign a non-disclosure agreement/confidentiality statement — this is how Epstein, Weinstein, Nassar, Cosby, etc. were able to sexually assault hundreds of women. The freedom to speak openly about your experience may always be able to help someone else in the future.
If you are experiencing, sexual harassment, retaliation, or any other form of workplace discrimination, feel free to reach out to me at hello@kendallsimon.com for support and guidance.
***Disclaimer: These are merely my recommendations based on my personal experience. I am not legally responsible for any decisions made based on the information provided.***