Filing a discrimination or retaliation complaint is a multi-step process for federal employees. The first step is called informal counseling. Here’s what you need to know about how to initiate informal counseling and what to expect:
How do I initiate informal counseling?
Informal counseling begins when you contact an EEO counselor at your agency to file a complaint. This is called the “initial contact.” You can make the initial contact in person, by phone, by email, or in some other form of writing. The date of the initial contact is important because it determines whether you filed your complaint on time. Federal employees must make initial contact with an EEO counselor within 45 days of the discrimination or retaliation. Making initial contact by email may be the best option because you will have proof of the date you contacted the EEO counselor.
Your initial contact doesn’t have to include a lot of information. Just be clear that you want to file a complaint for discrimination or retaliation. You should also mention the basis for your complaint, such as age, color, disability, national origin, race, religion, sex, sexual harassment, or prior EEO activity. After your initial contact, an EEO counselor should reach out to you to schedule a meeting.
What happens during informal counseling?
Your meeting with the EEO counselor may be in person or by phone. During the meeting, the counselor will explain the EEO process and your rights. The counselor will ask if you want traditional counseling or alternative dispute resolution (ADR).
Traditional counseling
This is a 30-day process during which the EEO counselor conducts a brief investigation of your claims. The counselor will ask you questions about your allegations. These questions usually include:
- Who discriminated or retaliated against you?
- When did he/she/they discriminate or retaliate against you?
- How were you discriminated or retaliated against?
- What is the basis of the discrimination or retaliation?
- Why do you think the discrimination or retaliation was based on a protected characteristic (age, disability, national origin, race, religion, sex, etc.)?
- What do you want to resolve your claims?
You must make sure you tell the counselor about each basis and incident of discrimination or retaliation. Your case will be limited to the claims that you identify during informal counseling.
The counselor may also contact the responsible management official or other witnesses to gather information. This is not an in-depth investigation, and the counselor will not make a decision or recommendation about your case.
ADR
The goal of ADR is to resolve your claims before you have to file a formal complaint. If you choose ADR, the Agency will set up a time for a mediator to meet with you and an agency representative. The agency representative may be the responsible management official (i.e., the manager who discriminated against you), your supervisor, or another manager. The mediator is a neutral person who does not represent you or the Agency. He or she won’t make a decision about your case. Instead, the mediator’s job is to encourage the parties to discuss the issues and figure out a way to resolve the dispute. The mediator may meet with you and the Agency representative at the same time. Or, the mediator may talk to each party privately.
How long does the counseling period last?
The agency should complete traditional counseling within 30 days of your initial contact. However, the EEO counselor may ask you to agree to an extension of time to complete counseling. You are not required to agree to an extension.
If you choose ADR, the agency doesn’t have to schedule the mediation within 30 days. The informal counseling period will end when you settle the case, or when the parties decide that settlement isn’t possible.
What happens at the end of counseling?
At the end of the informal counseling period, the EEO counselor should send you a letter informing you that you have the right to file a formal complaint within 15 calendar days. The EEO counselor will also prepare a counseling report with a summary of your claims and any steps the counselor took to investigate. Sometimes the counselor provides the report with the 15-day letter. Other times, you won’t get the report until later.
Do I need an attorney during the informal counseling period?
Federal employees don’t have to have an attorney to file an EEO complaint. Many of our clients retain us during or after informal counseling. However, an employment attorney can help make sure your case gets off to the right start. It’s extremely important to tell the EEO counselor about each basis and incident of discrimination or retaliation. Your case will be limited to the claims that you identify during informal counseling.
For example, say you tell the counselor your supervisor discriminated against you based on race when she gave you a bad performance rating. When you file your formal complaint, you can only claim that the discrimination was based on race, rather than race and religion. Or maybe you told the EEO counselor that your manager retaliated against you by denying a leave request in February 2020. When you file your formal complaint, you allege that your supervisor also retaliated by denying a leave request in December 2019. The Agency may dismiss the December claim because you didn’t tell the EEO counselor about it, and it’s been more than 45 days since the request was denied. An attorney can help you avoid these mistakes.
If you are filing an EEO complaint, Alan Lescht and Associates, P.C., can help. We can advise you about what information to provide to the EEO counselor and whether you should choose traditional counseling or ADR. And having an attorney on your side will likely result in a better result at mediation than if you go on your own. Our attorneys represent federal employees throughout the EEO process, at hearings before EEOC administrative judges, in appeals before the Office of Federal Operations, and in federal litigation of discrimination and retaliation cases.
