EEO counseling refers to the part of the EEO process which starts after you contact an EEO counselor about discrimination, harassment or retaliation and ends after you receive a notice of right to file a formal complaint or reach a resolution with the Agency.
Once you contact the EEO counselor the “EEO counseling” phase of the EEO process commences and lasts for 30 to 90 days. Your EEO counselor will discuss the process with you. You will either follow the traditional EEO counseling process or in the event your Agency offers you EEO mediation/ADR you will have a choice between the two. A common point of confusion is that you can choose to pursue EEO mediation/ADR during the EEO counseling phase. This is not true. The Agency must agree to offer you the opportunity to proceed to EEO mediation. There are many reasons why an Agency may not offer EEO mediation, including a lack of resources and therefore it is not a reflection of the strength of your case. Similarly, just because an Agency agrees to EEO mediation/ADR does not mean your demands will be met.
Remember! You have 45 days from the date of the discrimination, harassment or retaliation to contact an EEO counselor.
EEO counseling
- Overview of EEO counseling timeline
EEO counseling is the more traditional approach. EEO counseling takes 30 days (but can be extended another 60 days for a total of 90 days). Before the counseling can be extended beyond 30 days, you must agree to the extension in writing. At the conclusion of the initial 30 days you will receive a notice of right to file a EEO formal complaint which you have 15 days to file. You will receive this notice regardless of whether the EEO counselor completes the counseling process. If the EEO counselor completes counseling within the 30 days this is the only notice of your right to file a formal complaint that you will receive.
If the EEO counselor does not finish and requests an extension you do not have to agree to their request, and can instead file a formal complaint at the 30th day mark. If you agree to their request to extend, you will receive another notice of right to file a formal complaint once they finish (not to exceed a total of 90 days). Also, at any point during this extended time period (post 30 days) you can request the EEO counselor to stop and provide your notice of right to file a formal complaint.
- What does an EEO counselor do?
EEO counselors conduct a limited inquiry into your EEO allegations this includes discussing your allegations with all parties and reviewing supporting evidence. The EEO counselor also assists in characterizing your EEO complaint accurately. They go back and forth between the parties gathering relevant information and discussing your concerns in an attempt to resolve the issue. The EEO counselor’s limited inquiry into your allegations occurs in the context of resolving your complaint and establishing a jurisdictional basis for your complaint. The EEO counselor is neutral and therefore does not advocate for either party. The EEO counselor also does not make any decision regarding the validity or likely validity of the EEO complaint.
For example, if you allege your supervisor speaks abrasively to you because of your membership in a protected class. The EEO counselor may discuss the communication style of your supervisor with them, your perception of the communication, and suggest ways to improve the communication between the parties. Generally, in this hypothetical scenario the EEO counselor does not determine whether the communication was abrasive or constitutes discrimination.
- What are reasons for not agreeing to an EEO counselor’s request to extend the counseling period?
If you do not believe EEO counseling will yield a positive outcome for you, it may not be prudent to invest your time in the process. After you file a formal complaint, you will have additional opportunities to negotiate a settlement or resolution with your Agency.
Pro tip ⇒ If the EEO counselor does not finish within 30 days and requests an extension, ask them how much longer they think it will take. Based upon their response, then make a decision on whether to grant their request. You can also check in with them to understand their timeline throughout the process.
- What happens if EEO counseling is successful?
If the EEO counselor facilitates a mutually agreeable informal resolution between you and the agency, the terms should be memorialized in writing and signed by both parties to ensure the same understanding across all involved parties. The memorialized agreement between the parties also explains the available procedures to you under 29 C.F.R. § 1614.504, in the event the agency violates the terms of the agreement.
- What happens if EEO counseling is NOT successful?
You will receive the EEO counselor’s file which includes the evidence they gathered and a notice of right to file a formal complaint.
Read more about EEO counseling process: https://www.eeoc.gov/federal-sector/management-directive/chapter-2
EEO mediation and/or Alternative Dispute Resolution (ADR)
- What’s the difference between EEO mediation vs. Alternative Dispute Resolution (ADR)
Nothing. EEO mediation and alternative dispute resolution mean the same thing and can be used interchangeably.
- What is EEO mediation/ADR
A neutral and impartial EEO counselor attempts to formally mediate the dispute to arrive at a mutually agreeable solution. Whereas the EEO counselor may make an informal attempt to resolve the dispute during EEO counseling, mediation/ADR is a more structured approach to resolve the dispute. Resolution of the dispute is the primary goal of mediation/ADR.
You do not have a right to mediation/ADR. The Agency has to be willing to engage in mediation/ADR. If they are, the EEO counselor will offer it to you.
- How long does EEO mediation/ADR take?
It can last up to 90 days. However, at any point after 30 days you may request to stop mediation/ADR and receive your notice of right to file a formal complaint. It may be prudent to stop mediation/ADR after 30 days if it becomes clear to you that a solution agreeable to you will not be achieved.
- What if EEO mediation/ADR is successful?
The EEO counselor drafts a formal settlement agreement to which both parties sign. If the terms of the agreement are breached, then you must notify the Agency of the alleged breach within 30 days of its occurrence. For more information about the enforceability of the settlement agreement including violations refer to 29 C.F.R. § 1614.603.
- What if EEO mediation/ADR is not successful?
You will receive the notice of right to file a formal complaint and have 15 days to file.
Contact an attorney today to discuss whether EEO counseling or mediation/ADR makes the most sense for you. Further, an attorney can also help make sure that you accurately state all of your allegations to the EEO counselor and they correctly characterize them which the Pekich Law Firm PLLC believes is the most important part of making EEO contact (and filing your formal complaint). In fact, the EEO counselor's characterization of your EEO allegations can have far reaching consequences on the viability of your EEO complaint. While it is always possible to amend your complaint later on, such attempts are not guaranteed to be successful and may result in additional costs and delays for your case.