The EEO Complaint Process - Formal 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.
During the formal stage, the EEO completes a comprehensive investigation into the complaint by collecting information from all parties involved. Here are a few more points to help you know what to expect throughout the formal stage:
Acceptance/Dismissal
Federal EEO Complaint Process: If mediation during the informal stage is unsuccessful, and you’ve filed your formal claims/charges, the EEO Office will determine whether they will accept or dismiss them. If they are accepted, you will receive an Acceptance Letter notifying you that your claims will be investigated. If your claims are dismissed, you have the right to appeal this decision with the EEO.
Non-Federal EEO Complaint Process: If mediation is unsuccessful, your claims will go straight to investigation.
Investigation Duration
The EEO will assign an investigator to gather information related to your claim(s) (note: this is not the same person as your EEO Counselor). The investigator will likely conduct interviews with your employer and any possible witnesses, as well as gather all necessary documents.
Federal EEO Complaint Process: Investigations must be completed within 180 days of the complaint being filed.
Non-Federal EEO Complaint Process: Investigations are under no strict timeline and take an average of 10 months to complete.
Affidavits / Position Statements
Federal EEO Complaint Process: The investigator will “conduct an interview” in the form of a written affidavit. This is essentially a list of questions regarding your claims and requested remedy. It is extremely important to take the time to answer your affidavit questions thoroughly. You will need to return your affidavit answers to your investigator in 14 calendar days, so begin drafting your answers as soon as possible! Use clear and concise language to articulate your concerns and experiences, including all relevant details and any supporting evidence. You will hopefully have the bulk of the information requested for this form already saved in your log. Don’t downplay your experiences, but conversely, don’t embellish them either. A consistent storyline, including dates, words, and actions, is the most important aspect of your case. In other words, the truth is your greatest strength!
When you finish drafting your answers to your affidavit questions, send it to your attorney to review and edit. Once you’ve incorporated your attorney’s suggestions, you can send it to the investigator. After receiving your affidavit, your investigator will then use the information you provided to draft and send a similar list of questions, i.e., affidavits, to your employer and your witnesses.
This is, by far, the most time-consuming part of the EEO complaint process, but equally essential to the strength and integrity of your case. For example, there were 118 questions on my investigation affidavit. And once I had answered each question, it came to 39 pages long. However, with the information that I provided, it allowed my investigator to form highly knowledgeable and specific questions for my employer and witnesses.
If you did provide witnesses, you may want to consider reaching out to them. This may be an uncomfortable conversation, but it is important to give them a “heads up” so they know to expect an affidavit coming from the investigator. In addition, it is also important to maintain open and honest communication with these witnesses in general since they may be your greatest ally to corroborate your claim(s). You will be able to see the affidavits drafted by your witnesses when the final investigation report is available.
Non-Federal EEO Complaint Process: The EEO Counselor will ask the employer to provide a written statement answering questions related to your charge. This is called a "Respondent's Position Statement". The position statement will address each alleged discriminatory act and the employer’s position regarding it, as well as copies of documents supporting their position and/or version of the events.
Rebuttals
Federal EEO Complaint Process: Once the EEO investigator has received your employer’s affidavit (likely your supervisors), they will send a copy to you and your attorney. You will then have an opportunity to provide a rebuttal to your employer’s affidavit answers.
I highly recommend taking the time to read each line of the statement thoroughly so you can properly respond. This can be tedious, but you should provide a rebuttal to each and every answer that is even remotely inconsistent with the truth. Make sure your replies are extremely specific and include any relevant evidence. Remember - the devil is in the details! And as always, send your rebuttals to your attorney to review and edit before submitting it to the investigator.
Non-Federal EEO Complaint Process: Once the EEO investigator receives your employer’s position statement, you will receive an email notification indicating that you now have the opportunity to review and respond to it. You must log in to the EEO Public Portal to obtain a copy of the position statement.
Your response to your employer's position statement is essentially like an affidavit rebuttal. It is extremely important to read each line of the statement thoroughly so you can properly respond. Again, this can be tedious, but you should address each and every false or inaccurate claim made by your employer. Make sure your replies are extremely specific and include any relevant evidence. Always, always remember - the devil is in the details! Don’t forget to send your response to your attorney to review before uploading it! You should upload your response in the EEOC Public Portal within 30 days from the date you received it.
Workplace Incidents That Occur During the Investigation
If new harassment incidents take place during your investigation, you can add these as new claims to your EEO complaint at any point. For example, I decided to resign during the investigation phase of my EEO complaint. Because of this, my EEO Counselor added my "constructive discharge," (meaning involuntary resignation due to a hostile work environment) as an additional claim to my EEO complaint. I then added lost future wages, as a result of my constructive discharge, to my EEO remedy. All subsequent aspects of the investigation include these points.
Your deadlines may not be extended with your new claim, however, so you should contact your investigator immediately if you would like to add a new claim to your EEO complaint.
Investigation Report
When the investigation is concluded, an investigative report will be sent to you and your attorney. This report will include all documents related to your EEO complaint, including:
Your EEO complaint claims/charges
The investigator’s summary of each individual’s written testimony collected from the affidavits
Your affidavit
Your employers (supervisor’s) affidavits
Your rebuttals to your employer’s affidavits
Your witness’s affidavits
Any other relevant emails, letters, and chats not provided in the affidavits
Your company or agency’s discrimination policy, standards of conduct, anti-harassment procedures, etc.
Once you receive your investigation report, your EEO case may go in several directions. See my blog titled “The EEO Complaint Process - Decision Stage” for more information on those next steps.
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.***