Who may use the discrimination complaint process?
The EEO counseling and complaint process is available to all NIH employees (current and former), applicants for employment, contractors, Commissioned Corps Officers, and Title 42 employees. Individuals who feel they have been discriminated against because of race, religion, color, national origin, age (40 or older), physical or mental handicap, or sex (which includes transgender status, sex stereotyping, pregnancy, and equal pay), have access to EEO Counseling.
Please note that sexual orientation and gender identity are processed pursuant to the Department of Health and Human Services (HHS) policy and the process varies slightly from the traditional complaint process. In addition, individuals who feel that they have been retaliated against for opposing employment discrimination, filing a complaint of discrimination, or participating in the EEO complaint process (even if the complaint is not theirs) also have access to EEO Counseling.
What is discrimination?
Discrimination can take different forms, such as:
- Unfair treatment, and/or harassment, because of an individual's race, color religion, national origin, sex, age, disability, genetic information, transgender status, and sex stereotyping; retaliation for protected activity; or sexual orientation and gender identity (protected under HHS policy).
- Making an employment decision, denying benefits and privileges of employment, or otherwise affecting an individual's terms and conditions of employment because of race, color, religion, national origin, sex, age, disability, genetic information, transgender status, or sex stereotyping; retaliation for protected activity; or sexual orientation and gender identity (protected under HHS policy).
- Reprisal for engaging in prior protected activity.
- Denying a reasonable accommodation for religious beliefs or to a qualified individual with a disability without showing undue hardship.
What is the difference between informal complaint counseling and formal complaint processing?
Informal complaint counseling begins with an informal "limited inquiry" conducted by an EEO counselor through interviews with the employee's supervisor, fellow employees, and others who have knowledge of the complaint. The purpose of the limited inquiry is to seek a resolution of the matter. The process does not end in a decision on the facts presented and no one from EDI serves as a decision maker on the allegations raised. Further at this early stage, the EEO Counselor does not have any legal authority to dismiss any complaint. The sole focus of informal counseling is to assist the parties in trying to seek a resolution of the dispute.
Complaint processing begins with a "formal" complaint of discrimination filed with and accepted by the NIH. A contract EEO investigator assigned by HHS conducts an in depth investigation into the allegations raised by the complainant. The EEO Investigator takes sworn statements or affidavits from employees concerned with the complaint. Information gained during the investigation is recorded in an investigative file called the Report of Investigation.
Why must I see an EEO Counselor?
Counseling is a required first step in the EEO complaint process. Title 29 C.F.R. § 1614 requires that NIH employees and applicants must discuss EEO-related problems with an NIH EEO Counselor before filing an individual formal complaint. The alleged discriminatory incident must be brought to the attention of an EEO counselor within 45 calendar days of the occurrence or, if the incident involves a personnel action, within 45 calendar days of the effective date of the action.
What will an EEO Counselor do for me?
The EEO Counselor will establish an open and objective channel for you to raise questions, discuss issues, get answers, and resolve problems connected with equal employment opportunity. Counselors serve as bridges between employees and management. They are responsible for making informal fact-finding inquiries and trying to find solutions, when possible, to problems brought to their attention by employees. This technique is called “shuttle diplomacy.” The primary objective of an EEO Counselor is to attempt to seek resolution of the complaint informally at the counseling level.
How should I prepare for counseling?
Gather all information so that you will be ready to explain your complaint with clarity and reasonable specificity. Explain when the event occurred, who was involved, the circumstances surrounding the event, the basis on which you believe you were discriminated against (e.g. race, sex, etc.) and why you believe it was discrimination. Also, be prepared to discuss the remedy you are seeking in the complaint.
Do I need an attorney or representative during the informal stage?
No. You have the right to a representative of your own choosing throughout the complaint process, but a representative is not required. You may also choose to represent yourself. If you elect to have a representative throughout the complaint process, the representative could be a friend, a co-worker, or an attorney. While you have the right to choose your own representative, an EEO counselor or personnel employee may not act as your representative because their role is to remain a neutral third-party in the process.
What happens if my EEO issue is not resolved at the informal process?
If your EEO issue is not resolved at the informal stage, you may file a formal complaint within 15 calendar days of your receipt of the notice of your right to file a formal complaint issued by the EEO Counselor. You must sign and date the formal complaint and submit it to National Institutes of Health’s (NIH’s) Office of Equity, Diversity, and Inclusion (EDI). If your complaint is accepted for investigation, EDI generally has 180 calendar days to complete the investigation. If EDI dismisses your complaint in whole or in part, the EDI Director will notify you of your right to appeal the decision.
What if something else happens to me while my complaint is pending?
You may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims that are like or related to those raised in the original complaint. If you elect a hearing, you may file a motion with the Administrative Judge and ask to amend your complaint.
What types of claims allow me to proceed directly to federal court without engaging in EEO counseling?
If you want to file a complaint under the Age Discrimination in Employment Act (an age claim) or under the Equal Pay Act (a claim based on sex and pay disparity), you may file a civil action in the appropriate U.S. District Court without initiating EEO counseling or filing a formal EEO complaint with NIH.
It is important to note that individuals who allege sex discrimination may only proceed directly to federal court if they allege a violation of the Equal Pay Act. Discrimination cases brought under Title VII or the Rehabilitation Act must exhaust the administrative process (i.e., initiate EEO counseling and file a formal EEO complaint with NIH) before obtaining the right to sue in U.S. District Court.
As one of my requested remedies, can I ask that my supervisor be fired?
Relief in discrimination cases is awarded in order to make the victim of discrimination whole, not to punish the person responsible for engaging in discrimination. The Equal Employment Opportunity Commission does not have the authority to discipline or order that the agency take disciplinary action against a discriminating official as a remedy. However, the Commission can recommend corrective relief such as training. In addition, after a finding of discrimination, the agency is required to take action to prevent a recurrence of discrimination. Such corrective action could include discipline or training.
What are the responsibilities of supervisors, managers, and other employees to EDI staff, counselors, and investigators?
Equal Employment Opportunity is the responsibility of every manager, for it is the manager within each office and unit who ultimately determines the success or failure of the program. Program responsibility is shared by every line manager and supervisor in the organization. Each should work to make management decisions that are equitable in nature.
Federal EEO regulations require that all supervisors and managers provide their full cooperation to EEO counselors and investigators throughout the complaint process. All supervisors and managers have the responsibility to make a good faith effort to understand the complaint process and to resolve complaints of discrimination early in the process.
If contacted, non-supervisory employees are also responsible for cooperating with EEO counselors and investigators. Complainants, their representatives, and witnesses shall be free from restraint, interference, coercion, discrimination, or reprisal at any stage in the presentation and processing of a complaint including during the counseling stage or anytime thereafter.
The objective of Title 29 C.F.R. § 1614, the new Federal Sector Equal Employment Opportunity Regulations, is to ensure quicker, more efficient processing of complaints, and to promote impartial, fair, and early resolution of disputes. Section 1614.105(f) specifically encourages the use of the Alternative Dispute Resolution processes during the EEO counseling period. Pre-complaint counseling can be extended up to 90 calendar days, if an established ADR procedure is used.