EEO Counselor

Equal Employment Opportunity Counselor Introduction

Counseling Generally

The aggrieved person starts the equal employment opportunity (EEO) process by meeting with an EEO Counselor. The Counselor plays a vital role in ensuring prompt and efficient processing of the formal complaint. This section of the Management Directive provides Commission guidance and procedures that EEO Counselors should follow when presented with both individual and class claims of discrimination.

Full-Time Counselors

Agencies should use full-time EEO Counselors whenever possible. The employment and use of full-time EEO Counselors leads to the development of a professional corps of EEO Counselors who are better able to service the federal applicant and employee community. EEOC also encourages agencies to use the step-by-step guide at Appendix A to develop or refine its own counseling procedures.

EEO Counselor Training Requirements

Continuing education and training for employees working in federal sector EEO is vitally important to further the goals and objectives of equal employment opportunity. This Chapter establishes mandatory training requirements for Counselors.

ADR and EEO Counseling

Alternative dispute resolution (ADR) and EEO counseling are essential to achieving early resolution of the claim. The opportunity for informal resolution is important. ADR provides a means of improving the efficiency of the federal EEO complaint process by attempting early informal resolution of EEO disputes.

Aggrieved individuals who seek pre-complaint counseling must be fully informed of:

how the agency ADR program works;

the opportunity to participate in the program where the agency agrees to offer ADR in a particular case; and

the right to file a formal complaint if ADR does not achieve a resolution.

MANDATORY EEO COUNSELOR TRAINING REQUIREMENTS

Minimum Requirements

To ensure quality counseling throughout the federal sector, EEOC requires that new EEO Counselors receive a minimum of thirty-two (32) hours of EEO Counselor training prior to assuming counseling duties.

Individuals currently serving as Counselors may also benefit from such training. Agencies have the discretion to determine whether this training should be made available to current counseling staff. All EEO Counselors are required, however, to receive at least eight hours of continuing EEO counseling training every year.

EEOC has developed training courses to satisfy this requirement, and offers them to agencies through the EEOC Revolving Fund Program on a fee-for-service basis. Agencies may also develop their own courses to satisfy this requirement, or contract with others to provide training, as long as the training meets the standards set forth by the Commission.

Initial Thirty-Two Hour Training for New EEO Counselors

New EEO Counselors must receive training in the following areas before an agency assigns them to provide EEO counseling to aggrieved persons:

an overview of the entire EEO process set forth under 29 C.F.R. Part 1614, emphasizing important time frames in the EEO process and providing an overview of counseling class complaints and analyzing fragmentation issues (see Chapter 5, Section III of this Management Directive for a discussion of fragmentation);

a review of the roles and responsibilities of an EEO Counselor, as described in this Chapter and in the Appendices to this Management Directive;

an overview of the statutes that EEOC enforces, including Title VII of the Civil Rights Act of 1964, as amended (Title VII), the Rehabilitation Act of 1973, as amended, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act of 1967, as amended (ADEA), and the Equal Pay Act of 1963 (EPA), explaining the theories of discrimination, including the disparate treatment, adverse impact, and reasonable accommodation theories, and providing more detailed instruction concerning class actions and issues attendant to fragmentation;

a review of the practical development of issues through role-playing or other practices designed to have attendees practice providing EEO counseling, including the initial in-take session with an aggrieved person; identifying claims; writing reports; and attempting resolution;

a review of other procedures available to aggrieved persons, such as the right to go directly to court under the ADEA; mixed case processing issues, including the right of election; class complaints processing issues; and the negotiated grievance procedure, including the right of election; and

an overview of the remedies, including compensatory damages, attorney's fees, and costs available to prevailing parties.

Continuing Training

All Counselors are required to receive at least eight hours of continuing Counselor training every year to keep EEO Counselors informed of developments in EEO practice, law, and guidance, as well as to enhance and develop counseling skills. Accordingly, agencies should conduct a needs assessment to determine specific areas for training. The Commission anticipates that this training will include segments on legal and policy updates, regulatory and statutory changes, and counseling skills development.

THE EEO COUNSELING PROCESS

The Roles and Responsibilities of an EEO Counselor

The Commission has developed a guide for EEO counseling that agencies may use in developing or refining their own procedures. (See Appendix A.) The Commission also recognizes that agencies use many forms of ADR.

Where an aggrieved person seeks EEO counseling, the Counselor must ensure that the complainant understands his/her rights and responsibilities in the EEO process, including the option to elect ADR. The EEO Counselor must perform several tasks in all cases, regardless of whether the individual ultimately elects the ADR option, including:

Advise the aggrieved person about the EEO complaint process under 29 C.F.R. Part 1614. The EEO counselor should explain the agency ADR program, indicating either that the program is available to the aggrieved individual or that the EEO counselor will advise the individual whether the program will be made available. The EEO Counselor further should explain that if the ADR program is available, the aggrieved individual will have to exercise an election option, and decide whether to seek pre-complaint resolution through the ADR process or through the traditional EEO counseling process. In this regard, the EEO Counselor should inform the aggrieved individual about the differences between the two processes.

Determine the claim(s) and basis(es) raised by the potential complaint.

Conduct an inquiry during the initial interview with the aggrieved person for the purposes of determining jurisdictional questions. This includes determining whether there may be issues relating to the timeliness of the individual's EEO Counselor contact and obtaining information relating to this issue. It also includes obtaining enough information concerning the claim(s) and basis(es) so as to enable the agency to properly identify the legal claim raised if the individual files a complaint at the conclusion of the EEO counseling process.

Use of the term "initial interview" in this context is not intended to suggest that during the first meeting with the aggrieved person an EEO Counselor must obtain all of the information s/he needs to determine the claim(s) or basis(es). Nor does it mean that where the person decides to exercise his/her ADR option, the EEO Counselor is foreclosed from contacting the person to obtain such additional information as s/he needs for this specific purpose.

Seek a resolution of the dispute at the lowest possible level, unless the aggrieved person elects to participate in the agency's ADR program where the agency agrees to offer ADR in a particular case. If the dispute is resolved in counseling, the EEO Counselor must document the resolution.

Advise the aggrieved person of his/her right to file a formal discrimination complaint if attempts to resolve the dispute through EEO counseling or ADR fail to resolve the dispute.

Prepare a report sufficient to document that the EEO Counselor undertook the required counseling actions and to resolve any jurisdictional questions that arise.

PROVIDING INFORMATION TO THE AGGRIEVED PERSON

Provide Required Written Notice

At the initial session or as soon as possible thereafter, the EEO Counselor must provide all aggrieved persons written notice of their rights and responsibilities. § 1614.105(b). The Commission has set forth this information in the "EEO Counselor Checklist," appended to the Management Directive in Appendix B.

Provide Information On Other Procedures as Required

Depending upon the facts and circumstances of the particular case, an aggrieved person may have options other than the Part 1614 procedure available in pursuit of a discrimination claim. The individual, in some cases, may have to elect the process s/he wishes to pursue. Election options apply in age discrimination complaints, mixed case complaints, Equal Pay Act complaints, and claims where certain negotiated grievance procedures apply. EEO Counselors must be familiar with these procedures and be able to identify such cases when the aggrieved person first seeks counseling. See Appendices C and D. Other procedures apply where the complainant alleges sexual orientation discrimination.

Statutes and Regulations

EEO Counselors must have a good working knowledge of the complaint processing regulations in Part 1614 and a familiarity with federal anti-discrimination statutes, including:

Title VII of the Civil Rights Act of 1964, as amended

Title VII prohibits discrimination based on race, color, religion, sex, and national origin. It also prohibits reprisal or retaliation for participating in the discrimination complaint process or for opposing any employment practice that the individual reasonably and good faith believes violates Title VII.

Age Discrimination in Employment Act of 1967, as amended (ADEA)

The ADEA prohibits discrimination in employment on the basis of age (40 years or older). It also prohibits retaliation against individuals exercising their rights under the statute. Unlike Title VII and the Rehabilitation Act, the ADEA allows persons claiming age discrimination to go directly to court without going through an agency's administrative complaint procedures. If, however, a complainant chooses to file an administrative complaint, s/he must exhaust administrative remedies before proceeding to court. As with Title VII complaints, a complainant exhausts administrative remedies 180 days after filing a formal complaint or 180 days after filing an appeal with the Commission if the Commission has not issued a decision.

Rehabilitation Act of 1973, as amended

The Rehabilitation Act prohibits discrimination on the basis of mental and physical disabilities, as well as retaliation for exercising rights under the Act. The Rehabilitation Act requires that agencies make reasonable accommodations to the known physical or mental limitations of a qualified disabled applicant or employee unless the agency can demonstrate that the accommodations would impose an undue hardship on the operation of its program. (Congress amended the Rehabilitation Act of 1973 in October 1992 to provide that the standards used to determine whether non-affirmative action employment discrimination has occurred shall be the standards applied under Title I of the Americans With Disabilities Act. See § 503(b) of the Rehabilitation Act Amendments of 1992, Pub. L. No. 102-569, 106 Stat 4344 (October 29, 1992); 29 U.S.C. § 791(g).)

Fair Labor Standards Act of 1938, as amended (Equal Pay Act of 1963)(EPA)

The EPA prohibits sex-based wage discrimination. It prohibits federal agencies from paying employees of one sex lower wages than those of the opposite sex for performing substantially equal work. Substantially equal work means that the jobs require equal skills, effort, and responsibility, and that the jobs are performed under similar working conditions.⁽⁵⁾ It also prohibits retaliation for exercising rights under the Act.

Commission Regulations, Guidelines, and Policy Directives

The Commission has issued regulations that address the application of federal nondiscrimination law to the federal government. The regulations governing the processing of federal sector discrimination complaints are contained in Title 29 of the Code of Federal Regulations (C.F.R.), Part 1614. The regulations set out the Counselor's obligations enumerated in Section II of this Chapter.

Other Commission regulations and guidelines address the substantive provisions of federal nondiscrimination law. For example, 29 C.F.R. Part 1630 sets forth Commission regulations applicable to the Rehabilitation Act. EEO Counselors should be familiar with Part 1630 in order properly to counsel individuals who present claims of disability discrimination. The Commission also has issued enforcement guidance on discrete issues and areas of nondiscrimination law, such as "Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors," issued June 18, 1999; and "Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act," issued March 1, 1999. These documents and others are available on the EEOC web site at "www.eeoc.gov" in the Enforcement Guidance and Related Documents section.

DETERMINE THE CLAIM(S) AND BASIS(ES) OF THE POTENTIAL COMPLAINT

Determining the Claim(s)

Fragmentation

The EEO Counselor plays a crucial role in the complaint process. As discussed in more detail in Chapter 5, Section III of this Management Directive, EEO counselors must assist the complainant in articulating the claim so as to avoid fragmenting the claim. EEO Counselors must review the materials set forth in Section III of Chapter 5 and become familiar with the concept of fragmentation to ensure the proper identification of the claims set forth in a request for EEO counseling or in other documents that the EEO Counselor may prepare.

Identifying the claim(s)

At the initial interview, the Counselor must determine what action(s) the agency has taken or is taking that causes the aggrieved person to believe s/he is the victim of discrimination. This first step is essential to proceeding with the inquiry and resolution attempt and, if resolution is not achieved, essential to a focused investigation and hearing.

Before the Counselor begins the inquiry, s/he must be certain that the claim(s) are clearly defined and the aggrieved person agrees on how the agency defines the claim(s) that are to be the subject of the inquiry and subsequent attempts at resolution, whether through counseling or ADR. The Counselor must also determine, based on his/her understanding of the claims whether special procedures apply.

If a claim is like or related to a previously filed complaint, then the complaint should be amended to include that claim. If the claim is not like or related to a previously filed complaint, the claim should be processed as a separate complaint. Commission regulations require that agencies consolidate complaints for processing unless it is impossible to do so. See 1614.606. In a process set forth in Chapter 5, Section III.B of this Management Directive, a complainant shall be instructed to submit a letter to the agency's EEO Director or Complaints Manager (or a designee) describing the new incident(s) and stating that s/he wishes to amend his/her complaint to include the new incident(s). The EEO Director or Complaints Manager shall review the request and determine the correct handling of the amendment in an expeditious manner.