U.S. Department of Justice, Office of Justice Programs

Equal Employment Opportunity Program Instructions

1. Purpose

This Instruction defines the various Equal Employment Opportunity (EEO) and Affirmative Employment Programs of the Office of Justice Programs (OJP). It provides the procedures and guidance for initiating and processing complaints alleging discrimination, those agencies and officials responsible for the timely and judicious handling of EEO complaint matters, and the rights and responsibilities of persons participating in the EEO complaint process.

2. Scope

This Instruction applies to all OJP employees and applicants for employment.

3. Cancellation

This Instruction cancels OJP I 1563.4, Equal Employment Opportunity Policy, dated December 13, 1985, and LEAA I 1563.3B, Procedures for Processing Complaints of Discrimination Based on Race, Sex, Color, Religion, Age, National Origin and the Handicapped, dated July 25, 1978.

4. Authority

These policies and procedures are based on OJP's obligations under section 717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000a-6; sections 501 and 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791; section 15 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 633a; section 6(d) of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 206(d); the Veterans Readjustment Act of 1974; Uniform Guidelines on Employee Selection Procedures, 29 CFR Part 1607; Civil Service Reform Act of 1978; the Americans with Disabilities Act of 1991; the Civil Rights Act of 1991; Negotiated Agreement with AFSCME Local 2830; the Equal Employment Opportunity Commission's regulations in 29 CFR § 1614; the Department of Justice's regulations in 28 CFR Part 42; and White House Guidelines on Religious Expression in the Workplace, 33 Weekly Comp. Pres. Doc. 1223 (August 14, 1997).

5. Overall EEO Policy

The Office of Justice Programs is committed to providing equal employment opportunity for all employees and applicants for employment on the basis of merit without regard to race, color, religion, sex, age, national origin, sexual orientation, or physical or mental disability. The objective is to promote the full realization of equal employment opportunity through a continuing affirmative employment program which aims to eliminate discrimination based on factors which are irrelevant to job performance. Within the agency, every effort will be made to ensure that all employment decisions and personnel actions, including recruitment, selection, training, promotion, transfer, and benefits are administered in conformance with Federal statutes and regulations governing equal employment and personnel management.

OJP managers and supervisors are charged specifically with ensuring, through enlightened leadership, the continued and positive support of all objectives of the EEO Program. Management at all levels will ensure that questions and complaints of alleged unlawful discrimination or sexual harassment are investigated promptly and thoroughly and resolved without threat or reprisal to the employee or applicant.

All OJP employees have a personal responsibility to support equal employment opportunity in the workplace. The agency has a strong commitment to ensure that all employees are able to take full advantage of opportunities to enhance their personal career goals.

This commitment for equal employment opportunity applies to and must be an integral part of every aspect of OJP personnel policy.

6. Policy and Procedures for Handling Sexual Harassment

OJP I 1563.5, OJP Policy and Procedure for Handling Sexual Harassment Complaints/Allegations, dated July 12, 1995, defines sexual harassment and provides guidance and procedures to follow when allegations or complaints of sexual harassment are raised.

7. Responsibilities

a. The Assistant Attorney General (AAG) is the chief EEO official for OJP. The AAG is responsible for the agency's affirmative action efforts and is ultimately responsible for the EEO complaints system. In addition to other responsibilities as described in 29 CFR § 1614.102, the AAG is responsible for ensuring that full cooperation is provided by all agency employees to all agency EEO personnel, including EEO Counselors, in the processing and resolution of precomplaint matters and complaints within the agency.

b. Managers and supervisors are responsible for ensuring the effective development and management of an equal employment opportunity program and for ensuring that discriminatory practices do not exist in their organizations. In addition, managers and supervisors are responsible for cooperating with EEO officials in pre-complaint and complaint matters and are expected to support the participation of their employees in EEO activities.

c. The EEO Officer manages the Discrimination Complaints Processing System, provides guidance to EEO Counselors, monitors the activities of EEO Investigators, and provides leadership and guidance to OJP management in carrying out the policy of affirmative employment and nondiscrimination.

d. EEO Counselors make inquiries into matters alleged to be discriminatory and seek to resolve concerns at the pre-complaint stage

e. Special Emphasis Program Managers coordinate agency efforts to promote the recruitment, hiring, training and advancement of minorities, women, and disabled persons.

8. Definitions

a. Affected Class. A group of people with a common characteristic (race, sex, age, disability, etc.) which, historically, has been denied equal employment opportunity in violation of pertinent civil rights laws and regulations. This denial may occur at any step in the employment continuum: recruitment, placement, promotion, compensation, training, removal, etc.

b. Age. A basis of EEO discrimination applying to those persons who are 40 years of age or older. Persons under 40 are not protected from discrimination based on age.

c. Color. A basis of EEO discrimination which refers to complexion or skin hue.

d. Disability. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, cardiovascular, reproductive, digestive, respiratory, genitourinary, hemic and lymphatic, skin and endocrine, or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, or learning disability.

e. Disabled Individual. A person with a physical or mental impairment which substantially limits major life activities such as walking, seeing, hearing, or breathing; has a record of such impairment; and/or is regarded as having such an impairment even when no limitations exist. This excludes individuals currently engaging in illegal use of drugs, as defined by the Controlled Substance Act.

f. Discrimination. Unfair treatment attributable to a person's age, sex (including sexual harassment), physical or mental disability, race, color, religion, national origin, or sexual orientation.

g. Disparate Impact. The effect of certain employment practices that appear neutral in their treatment of different groups but, in fact, impact more negatively on one group than another and cannot be justified by business necessity.

h. Disparate Treatment. The effect of certain employment practices that treat certain persons less favorably than others because of their race, color, religion, national origin, age, sex, sexual orientation, or physical or mental disability.

i. Race and National Origin Designations. The following employee (and applicant) groups are recorded to trace applicant flow and minority group representation: (1) American Indian/Alaskan Native; (2) Asian/Pacific Islander; (3) Black, not of Hispanic origin; (4) Hispanic; and (5) White, not of Hispanic origin.

j. Reasonable Accommodation. A change in workplace, work schedule, job structure, or equipment that allows qualified disabled employees to perform the essential functions of a position, and which does not impose undue hardship on the employer.

k. Underrepresentation. The employment of fewer minorities or women in a distinct job classification or series than would appear reasonable in comparison to the representation of the group in an appropriate civilian labor force profile.

l. Undue Hardship. With respect to the provision of accommodation for persons with disabilities, undue hardship refers to significant difficulty or expense to the employer, determined by:

(1) The size of the agency,

(2) The type of agency operation, and

(3) The nature and cost of the accommodation.

9. Affirmative Employment Programs

The Affirmative Employment Programs cover a wide spectrum of activities involving affirmative action planning for the recruitment, hiring, placement, training, and advancement of historically underrepresented and/or underutilized groups within the work force. These activities focus on enhancing the representation of American Indians/Alaskan Natives, Hispanic-Americans, Asian-Americans/Pacific Islanders, African-Americans, persons with disabilities, females, and Vietnam-era veterans at all levels within the agency.

a. Affirmative Employment Program (AEP) Plan for Minorities and Women. Annual report update prepared pursuant to Section 717 of Title VII of the Civil Rights Act of 1964, as amended, and the EEOC's Management Directive 707, as amended. Program objectives are to target occupations in the agency for affirmative action efforts; to monitor the hiring, advancement, and training of minority and female groups which are underrepresented in the targeted occupations; and to examine any barriers that may hinder recruitment, hiring, placement, and promotion of minorities and women.

b. Federal Equal Opportunity Recruitment Program (FEORP) Plan. Prepared annually and administered pursuant to Section 310 of the Civil Service Reform Act (CSRA) of 1978, and the Office of Personnel Management's Federal Personnel Manual, Chapter 720, which sets forth the objectives and initiatives the agency will undertake through affirmative recruitment to eliminate any underrepresentation of minorities and females in the workforce.

c. Affirmative Employment Program Plan for Hiring, Placement, and Advancement of Disabled Individuals. Prepared annually in accordance with Section 501 of the Vocational Rehabilitation Act of 1973, as amended (29 U.S.C. § 791); Reorganization Plan No. 1 of 1978; Executive Order 11478 (34 F.R. 12985, August 10, 1969), as amended by Executive Order 12106 (44 F.R. 1053, December 30, 1978); and EEOC's Management Directive 711.

Federal agencies must ensure that qualified disabled individuals have equal opportunity to be hired, placed, and advanced in Federal jobs. Affirmative employment must be an integral part of ongoing agency personnel management programs. Agencies should employ persons with disabilities in a broad range of grade levels and occupational series, and agency policies should not unnecessarily exclude or limit persons with disabilities though job structure, design, architectural, transportation, communication, procedural, or attitudinal barriers.

d. Affirmative Action Program Plan for the Recruitment and Hiring of Disabled Veterans. Prepared annually by the agency pursuant to Section 403 of the Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended (38 U.S.C. § 4214) and 5 CFR Part 720, Subpart C. It sets out the agency's objectives to ensure equal employment opportunity for all disabled veterans, especially those who are 30 percent or more disabled.

10. Special Emphasis Programs

Focused program initiatives that are usually part of an agency's larger affirmative action efforts designed to promote the employment and development of a specific group. The special emphasis programs consist of six programs defined below, each with a designated program manager.

a. The Asian/Native American Program. Established by the Department of Justice (DOJ) to ensure equal employment opportunity for Asians, Pacific Islanders and Native Americans throughout the DOJ agencies. The program focuses on the recruitment, placement, training, and advancement of Asian/Native American employees and applicants.

b. The Black Affairs Program. Established by DOJ to focus on the recruitment, hiring, placement, training, and advancement of African-American employees and applicants.

c. The Federal Women's Program. Integrated into the Federal Government's overall EEO/Affirmative Action effort by Executive Order 11478, in 1969, this is a special emphasis activity that the Office of Personnel Management oversees. The Program focuses on the recruitment, hiring, training, and advancement of female applicants and employees.

d. The Hispanic Employment Program. Integrated into the Federal Government's overall EEO Affirmative action effort by Reorganization Plan No. 1 in 1978, this is a special emphasis activity that the Office of Personnel Management oversees. The Program focuses on the recruitment, hiring, training, and advancement of Hispanic-American applicants and employees.

e. The Selective Service Program (SSP). Prompted by P.L. 89-554, codified as 5 U.S.C. § 7153, this special emphasis activity that focuses on the recruitment, hiring, training, and advancement of people with disabilities. Barrier removal and the provision of reasonable accommodations are integral components of the SSP.

f. The Upward Mobility Program (UMP). Detailed in OJP I 1531.2, the Upward Mobility Program (UMP) is a systematic personnel management effort to provide for the development and implementation of specific career opportunities for Federal employees at grade levels GS-9 and below, or the equivalent, who are in positions or occupational series which neither utilize their full work potential nor provide significant promotion potential beyond their current grade level.

11. The Equal Employment Opportunity Complaint System

The Equal Employment Opportunity Complaint System functions pursuant to the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000a-6; the Civil Rights Act of 1991 (P.L. 102-166); the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e et seq.; the Equal Pay Act of 1963, 29 U.S.C. § 206; the Vocational Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.; the Federal Age Discrimination in Employment Act of 1978 (P.L. 95-256); the Civil Service Reform Act of 1978 (P.L. 95-454); and 29 CFR Part 1614. The procedural requirements are designed to afford applicants for employment and employees of OJP who believe that they have been discriminated against on the basis of race, color, age, religion, national origin, sex (including sexual harassment), physical or mental disability, or reprisal in connection with EEO-related activities, an avenue of review and appeal through which to seek appropriate relief.(1)

a. Precomplaint Procedures.

(1) Who May File? A complaint may be filed by an aggrieved person (employee or applicant for employment) or by an organization or authorized representative with the aggrieved person's written consent.

(2) Requirement to Consult a Counselor. An aggrieved person who believes that he or she has been discriminated against, must consult with an EEO Counselor to try to resolve the matter prior to filing a formal complaint.

(3) Anonymity of Complainants. A person who seeks EEO Counseling has a right to remain anonymous if he or she does not desire his/her identity revealed during the counseling period.

(4) Duties of the EEO Counselor. The EEO Counselor is required to:

(a) Advise the aggrieved person about the EEO complaint process under 29 CFR § 1614;

(b) Determine the issue(s) and basis(es) of the potential complaint;

(c) Make whatever inquiries he/she believes are necessary for settlement efforts and to determine jurisdictional questions, if a formal complaint is filed;

(d) Seek a resolution of the matter at the lowest possible level;

(e) Document the resolution or advise the complainant of his/her right to file a formal discrimination complaint if resolution fails; and

(f) Prepare a report which adequately reflects the issue(s), basis(es), and attempted resolution of potential complaint.

(5) Time Limits.

(a) To Contact the EEO Counselor. An aggrieved employee or applicant for employment who believes that he/she has been the victim of discrimination as previously described must consult with an EEO Counselor within 45 calendar days of the date of the employment matter or, if a personnel action, within 45 calendar days of its effective date.

Note: The Federal Age Discrimination in Employment Act allows an employee filing on the basis of age to forego the administrative processing of his/her complaint. Such an employee must be at least 40 years of age at the time of filing the formal EEO complaint and must file the complaint on the basis of age. The employee may file a civil suit in an appropriate U.S. District Court, after giving the EEOC not less than a 30-day notice of the intent to file such an action. Such notice must be filed in writing with EEOC headquarters at the following address: EEOC, Federal Sector Programs, 1801 L Street, N.W., Washington, D.C. 20507. An employee or applicant for employment may choose not to go directly to court but seek redress through the administrative procedures outlined herein. Other persons filing EEO complaints on the basis of race, color, religion, sex (including sexual harassment), national origin, physical or mental handicap, or reprisal under Title VII of the 1964 Civil Rights Act, as amended, must exhaust their administrative remedies through the Agency's EEO-complaint processing system and available appeals before exercising their right to seek judicial review.

(b) Extension of Time Limits. The EEO Officer will extend the time limits for making contact with a counselor when the complainant shows that he/she was not notified of the time limits and was not otherwise aware of them, or that circumstances prevented him/her from submitting the matter to an EEO Counselor within the specified time limits or for other reasons considered sufficient by the Agency.

(c) To Complete the Counseling Activity. The Counselor will, insofar as is practicable, conduct the final interview with the aggrieved person no later than 30 calendar days after the date on which the aggrieved person brought the matter to the counselor's attention. If, within 30 days, the EEO Counselor has been unable to resolve the matter to the satisfaction of the aggrieved person, the counselor must notify the aggrieved person in writing of his/her right to file a formal complaint of alleged discrimination and identify the appropriate agency officials with whom to file such a complaint. The written notice informs the aggrieved person of his/her right to file a formal, written complaint at any time up to 15 calendar days after receipt of the notice of right to file and/or receipt of the notice of the final counseling interview.

Before the end of the 30-day period, the aggrieved person and the agency may agree in writing to postpone the final interview and extend the counseling period for an additional period of not more than 60 days.

At the conclusion of the counseling activity, the counselor issues to the potential complainant a written notice that the final counseling session has been held and that the matter has not been resolved to the satisfaction of the aggrieved. This written notice can be a part of the aggrieved employee's notice of right to file an EEO complaint or a separate document. If it is a separate notice, it also must include the time limits for filing a formal, written complaint and the names of the appropriate agency officials who may accept a formal complaint.

b. Equal Employment Opportunity (EEO) Mediation Program. On February 27, 1996, the Department of Justice (DOJ) announced the addition of an alternative dispute resolution (ADR) component to the EEO complaint process. This ADR method, the EEO Mediation Program, is an option for OJP employees or applicants for employment, at the pre-complaint stage. The mediation process employs trained third-party neutrals to help the parties in reaching a settlement of their differences.

A typical mediation session includes a lead and co-mediator, the complainant, and a management official authorized to act for the office involved. The Department's ADR Program Guidelines contain further details on the operational process and benefits of this program.

c. Formal Complaint Procedure.

(1) Time Limit. A complaint must be filed within 15 calendar days of receipt of the notice from the Counselor as described in Paragraph 11 of this Instruction. The complaint may be delivered in person or submitted by mail. A complaint is deemed filed on the day it is received or on the date of the postmark, if mailed. The complaint also must be in writing, and signed by the complainant or his/her representative. It should set forth the facts or circumstances which support each allegation of discrimination. The complaint also must contain a telephone number and address where the complainant or the representative can be contacted.

(2) Representation. At any stage in the presentation of a complaint, including the counseling stage, the complainant has a right to be accompanied, represented, and advised by a representative of his or her own choosing. EEO Counselors, EEO Officers, and EEO Program Managers cannot serve as representatives for complainants or for agencies in connection with the processing of discrimination complaints.

(3) Official Time. Both the complainant and the representative, if they are active duty status employees at the agency, are entitled to a reasonable amount of official time to present the complaint.

Note: A reasonable amount of official time (as defined by EEOC Management Directive, EEO-MD 110, dated October 29, 1993) is whatever is appropriate under the particular circumstances of the complaint, to allow a complete presentation of relevant and material information associated with the complaint, with the required specificity and detail, to the appropriate agency and EEOC officials.

(4) Freedom from Restraint, Interference, or Reprisal.

(a) Complainants, their representatives, and witnesses must be free from restraint, interference, coercion, discrimination, or reprisal at every stage in the presentation and processing of a complaint, including the counseling stage, or at any time thereafter.

(b) EEO Counselors must be free from restraint, interference, coercion, discrimination, or reprisal in connection with the performance of their counseling duties.

(5) Complaint Dismissal. At the recommendation of OJP's EEO Officer, the Department's Director of EEO may reject a complaint which was not filed in a timely manner, must reject those allegations of a complaint which are not within the purview of 29 CFR § 1614.103, and must reject a complaint which sets forth identical matters as contained in a previous complaint filed by the same complainant which is pending in the agency or has been decided by the agency. The EEO Director also may dismiss a complaint because of failure of the complainant to prosecute the complaint, or to accept within 30 days a properly certified offer of full relief. The EEO Director transmits the decision to reject or dismiss by letter to the complainant and his/her representative. The decision letter must inform the complainant of his/her right to appeal the decision of the agency to the EEOC (pursuant to 29 CFR § 1614.402), of the time limit within which the appeal must be submitted and of the complainant's right to file a civil action as described in 29 CFR § 1614.408.

(6) Acknowledgment of Receipt of Formal Complaint. The EEO Director notifies the complainant and his/her representative in writing of the receipt of a written complaint. The following must be included in this correspondence:

(a) Date. The date the complaint was received by the Agency or the date of the postmark (this is the official date upon which the complaint is deemed as filed);

(b) Accepted/Rejected Allegations. The allegation(s) of the complaint that has been accepted for investigation (or rejected);

(c) Statement of Rights. A full statement of all the complainant's administrative rights and right to file a civil action in an appropriate district court, as set forth in 29 CFR § 1614.408, including the time limits imposed on the exercise of those rights; and

(d) Obligation to Investigate in a Timely Manner. A statement of the agency's obligation to investigate in a timely manner. The investigation must be factual, complete, impartial and finished within 180 days of filing of the complaint, or within the time period ordered by the Office of Federal Operations, EEOC, unless the EEO Officer, or designee, and the complainant agree in writing to an extension of not more than 90 days.

(7) Administering the Investigation.

(a) Purpose. Section 1614.108(b) of 29 CFR provides that "the agency shall develop a complete and impartial factual record upon which to make findings on the matters raised by the written complaint." The purposes of the investigation are (1) to gather facts upon which to base a determination as to whether the agency has violated any provision of applicable statutes, and (2) if a violation is found, to have sufficient factual basis from which to develop an appropriate remedy.

(b) An investigation must be completed within 180 days after the complaint has been filed or as described by EEOC's Office of Federal Operations.

(c) The EEO Officer authorizes, in writing, the person conducting the investigation to:

(i) investigate all aspects of complaints of discrimination;

(ii) require all employees of the agency to cooperate with the investigator in the conduct of the investigation; and

(iii) require employees of the agency having any knowledge of the matter to furnish testimony under oath or affirmation without a promise of confidentiality.

NOTE: Reference is made to testifying without a promise of confidentiality. Various officials within the agency and within the EEOC may have access to the complaint file in connection with the efforts of EEO officials who are attempting to resolve complaint matters. Portions of the complaint file may be made public in subsequent court litigation.

(d) Impartiality. The investigator must be thorough, unbiased and objective. The investigator must be neutral in his/her approach to collecting facts. The investigator is not an advocate for any of the parties or interests and should refrain from developing allegiances to them.

(e) Duties of the Investigator.

(i) Study the Allegations.. The EEO Investigator receives a copy of the complaint file from the EEO Director to study the allegation(s) of the complaint, to familiarize himself/ herself with the environment out of which the complaint arose, and to prepare, when appropriate, a written investigative plan for submission to the EEO Officer. This plan outlines the strategies which the investigator plans to use to uncover the relevant documentation necessary to facilitate an adjustment of or to make an informed decision on the complaint.

(ii) Contact Appropriate Persons. The EEO Investigator contacts the Bureau/Office Head in the office where the alleged discrimination took place to inform him/her of the investigation dates.

(iii) Request Needed Documents. The EEO Investigator informs each Bureau/Office Head, or the Director of Personnel (or other official record keepers), in writing, of any copies of, or extracts from records, policy statements, or regulations of the agency or of the Federal Government that he/she needs to review, copy, or otherwise obtain to conduct the investigation. The Bureau/Office Head or Director of Personnel (or other official record keepers) must make every effort to provide this information or direct the investigator to an appropriate source to obtain the information.

(iv) Notify Witnesses. The EEO Investigator notifies each witness being called to testify during the investigation of the dates of the investigation, the allegation(s) of the complaint and, where possible, proposed interview dates. The EEO Investigator informs the complainant and any witness of his/her right to have a representative of his/her choosing present at the time that a statement is taken.

(f) Conducting the Investigation. The EEO Investigator may, at his/her discretion, use mechanical recording instrumentation to record the questions asked of each witness and the witness' response; transcribe the testimony of each witness into a verbatim format or reconstruct the statement in an affidavit (first person narrative) format for the signature of the witness; and allow each witness to review her/his statement, to identify and correct any errors of fact, before it is placed in the investigative file. Also, each witness receives a copy of the statement for his/her file.

If necessary, the investigator may obtain information regarding the membership or nonmembership of a person in the complainant's group by asking each person during questioning to provide the information voluntarily; the investigator may not require or coerce an employee to provide this information.

The EEO Investigator allows any individual, named or otherwise identified as a person who may be responsible for an alleged act of discrimination, to respond to any and all allegations made against him/her. The agency official allegedly responsible for discriminatory activity is considered to be a witness and is entitled to no more rights than any other witness. The responsible management official may have access to complaint materials to the extent needed to respond to allegations and give evidence.

(g) The Investigfrom the EEO Officer;

(ii) Statement of the complainant, and of any witnesses; and

(iii) Any documentary or statistical information acquired or generated by the investigation organized to show its relevance to the allegation(s) of the complaint and/or the environment out of which the complaint arose.

(h) Review of Investigative File.

(i) Review. The EEO Officer reviews the investigative file for completeness.

(ii) Distribution. The EEO Officer furnishes a copy of the investigative file to the complainant and his/her representative promptly after completing a review of its contents.

(iii) Notification. The EEO Officer provides written notification to the complainant and his/her representative, at the time the file is transmitted, of the Privacy Act protection provided persons giving statements and of the criminal penalties which may be imposed on those who might inappropriately use any information contained in the investigative file.

(8) Disclosure of Investigative Material.

(a) To the Complainant. The complainant receives a copy of the complaint file and a transcript of any hearings.

(b) To Other Witnesses. The agency may disclose information and documents to a witness when the disclosure of the information or documents is necessary to obtain information from the witness, e.g., to explain the allegations in a complaint or to explain a manager's articulated reason for an action to develop evidence bearing on that reason.

(9) The agency official alleged to have discriminated against the complainant is a witness and is entitled to no more rights than any other witness. From a legal standpoint, complaints are filed against Federal agencies as entities regardless of whether a complainant names or identifies the person responsible for the action which gave rise to the complaint. The EEOC views an individual who is named or identified as the person responsible for the action which gave rise to a complaint as a witness whose participation in the complaint process should not be materially different from that of any other witness.

(10) Remedial Action. The agency is responsible for remedial action if it is determined that the complainant has been discriminated against illegally. The agency also will determine, on a case-by-case basis, whether the employee(s) who engaged in the discriminatory practice should be disciplined. However, the primary purpose of the complaint process is to determine whether discriminatory conduct occurred and not to prescribe disciplinary action.

(11) Offer of Hearing.

(a) Notification. The agency notifies the complainant that within 30 days of receipt of the investigative file:

(i) The complainant has a right to request a hearing before an Administrative Judge of the EEOC, or

(ii) The complainant has a right to request a final agency decision by the agency head without a hearing.

(b) Hearings by an EEOC Administrative Judge are conducted pursuant to the conditions set forth in 29 CFR § 1614.109.

(12) Hearings.

(a) Introduction. The Hearing is an adjudicatory proceeding which completes the investigation of a complaint by ensuring that the parties have a fair and reasonable opportunity to explain and supplement the record and to examine and cross-examine witnesses. An Administrative Judge from the EEOC adjudicates the allegations of discrimination and issues findings and conclusions.

(b) Closed to the Public. Hearings are a part of the investigative process and access is restricted in accordance with the EEOC's regulations and policies and the discretion of the Administrative Judge.

(c) Verbatim Hearing Transcripts. The agency arranges and pays for a verbatim transcript of the proceedings. All documents submitted to and accepted by the Administrative Judge are a part of the record. The Administrative Judge issues findings and conclusions on the merits of the complaint, including appropriate relief where discrimination is found.

(d) Site of the Hearing. The Administrative Judge determines whether to conduct the hearing in the EEOC district office, in an EEOC area or local office, at the agency's organizational component where the complaint arose, or at another appropriate location.

(e) Administrative Judge's Authority. The Administrative Judge has the authority to: Administer oaths; regulate the conduct of hearings; limit the number of witnesses; order discovery or the production of witnesses and documents; exclude any person from the hearing who is disruptive; order supplemental investigations; limit the hearing to the issues in dispute; issue findings and conclusions without a hearing if there are no material facts in issue; and impose sanctions on parties who fail to comply with discovery orders.

(f) Transmittal of the Findings and Conclusions. At the conclusion of the hearing stage and within 180 days of a request for a hearing, the Administrative Judge issues his/her findings and conclusions.

(13) Final Agency Decisions.

(a) Time Limits. The Department of Justice's Complaints Adjudication Officer must issue a final agency decision within 60 days of receiving notice that a complainant has requested an immediate decision from the agency; within 60 days of the end of the 30-day period for requesting a hearing, if the agency has not received a timely request; or within 60 days of receiving the findings and conclusions of an Administrative Judge. The final decision is in writing and is transmitted to the complainant and his/her representative either by certified mail, return receipt requested, or by any other method which enables the agency to show the date of receipt.

(b) Final Decisions Include the Following:

(i) Findings on the merits of each issue in the complaint;

(ii) Appropriate remedies and relief when discrimination is found;

(iii) Appropriate remedies and relief authorized by law which the agency has determined to be necessary or desirable to resolve the issue of discrimination and promote the policy of equal opportunity, when no discrimination is found;

(iv) Notice of right to file a civil action in Federal district court;

(v) The name of the proper defendant in any such lawsuit; and

(vi) The applicable time limits for appeals and lawsuits.

(c) Attorney Fees. When the final agency decision provides for an award of attorney's fees or costs, the amount of these awards is determined under 29 CFR § 1614.501. When the agency determines not to award attorney's fees or costs to a prevailing complainant, the agency must justify the specific reasons for denying the award.

(d) If there has been a hearing, the agency must transmit, with the final agency decision, a copy of the findings, analysis, and recommended decision of the Administrative Judge and a copy of the hearing record. The agency may adopt, reject, or modify the decision recommended by the Administrative Judge. If the agency rejects or modifies the recommended decision, the decision letter must set forth the specific reasons in detail.

(14) Contents of a Complaint File. The EEO Officer establishes and maintains a complaint file which contains:

(a) The formal, written complaint signed by the complainant;

(b) The letter acknowledging receipt and acceptance/rejection of the complaint;

(c) The EEO Counselor's written report of the precomplaint counseling efforts made on behalf of the complainant;

(d) The EEO Counselor's "Notice of Right to File a Discrimination Complaint" and "The Notice of Final Interview" and any other relevant documentation that the counselor may have collected during the course of counseling;

(e) Any documents submitted by the complainant or the representative in support of the allegation(s) of the complaint;

(f) A written statement signed by the complainant designating a representative (whenever such a designation is made or modified) and the representative's address and telephone number;

(g) The investigative file;

(h) If the complaint is withdrawn, a written statement from the complainant or the representative to that effect, signed by the complainant;

(i) If there is a resolution of the complaint, the terms of the resolution must be in writing and signed by the complainant and the appropriate agency officials responsible for implementing the adjustment. However, documentation concerning the substance of attempts to resolve the complaint during informal counseling should not be made a part of the file;

(j) The hearing transcript, if any, and recommended decision; and

(k) The final agency decision.

Note: The Complaint file must not contain any document(s) that has not been made available to the complainant or a designated official under 5 CFR § 294.401.

d. Appeal to the Equal Employment Opportunity Commission.

(1) Entitlement. A complainant may appeal to the EEOC the decision of the head of the agency or his/her designee:

(a) To reject his/her complaint, or a portion thereof;

(b) To dismiss his/her complaint because of the complainant's failure to prosecute his/her complaint; or

(c) On the merits of the complaint, under 29 CFR § 1614.401 or on the award of attorney's fees, when the decision does not resolve the complaint to the complainant's satisfaction; or

(d) The agency's alleged noncompliance with a settlement agreement or final agency decision in accordance with 29 CFR § 1614.504.

(2) Where to File Appeals. The complainant must file his/her appeal in writing, either personally or by mail or facsimile, with the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036.

(3) Time Limit for Filing Appeals. The complainant may file an appeal of the agency's final decision within 30 calendar days after receipt of the notice of final decision. This time limit may be extended, upon the discretion of the Appeals Review Board, when the complainant shows that he/she was not notified or that circumstances beyond his/her control prevented the filing of an appeal within the prescribed time limit.

e. Civil Action. A complainant is authorized to file a civil action in an appropriate United States District Court:

(1) Within 90 days of receipt of the agency's final decision on a complaint if no appeal has been filed;

(2) After 180 days from date of filing a complaint if an appeal has not been filed and a final decision has not been issued;

(3) Within 90 days of receipt of the EEOC's final decision on an appeal of the agency's final decision; or

(4) After 180 days from the date of filing an appeal with the EEOC if there has been no final decision by the EEOC.

12. Other Bases/Types of Complaints

a. Mixed Complaints. A person who alleges discrimination in connection with a matter which also is appealable to the Merit Systems Protection Board (MSPB) may file an appeal to the MSPB or an EEO complaint within the Agency, but may not pursue both courses concurrently. Whichever action the employee files first is considered an election to proceed in that forum.

(1) If an employee files an appeal to the MSPB and then files a complaint alleging discrimination regarding the same matter with the agency, the EEO Director must reject or dismiss that complaint. The notification of rejection or dismissal must inform the complainant of his/her responsibility to raise the allegations of discrimination in connection with his/her appeal to the MSPB.

(2) If an employee files an appeal to the MSPB after filing a complaint alleging discrimination regarding the same matter with the agency, the EEO Director must advise the MSPB and request that it dismiss the appeal without prejudice. Processing of the complaint will continue within the agency, except that there will be no hearing before the EEOC and the complainant's appeal rights will be to the MSPB.

(3) The EEO Officer, EEO Counselors, and other officials involved in processing complaints alleging discrimination in connection with matters also appealable to the MSPB must ensure that all appropriate written and oral notification are made to complainants and their representatives.

Note: Most issues appealable to the MSPB fall within the following six categories: removal; demotion; suspension of more than 14 days; reduction-in-force; denial of within grade increase; and furlough for less than 30 days.

b. Class Complaints. A class complaint is a written complaint of discrimination filed on behalf of a class by the class' agent alleging that the class is so numerous that a consolidated complaint by the members of the class is impractical, that there are questions of fact common to the class, that the claims of the agent of the class are typical of the claims of the class, and that the agent of the class or, if represented, that representative will fairly and adequately protect the interests of the class.

Note: An agent of the class is a class member who acts for the class during the processing of the class complaint.

c. Sexual Orientation. The Department of Justice's regulation in 28 CFR Part 42 sets forth the policy prohibiting discrimination based on sexual orientation.

(1) Bargaining Unit Employees: All OJP bargaining unit employees must follow the negotiated grievance procedure outlined in article 24 of the Union Contract.

(2) Non-bargaining Unit Employees: All non-bargaining unit employees are entitled to follow the agency's internal administrative EEO process.

(i) Precomplaint Counseling. All non-bargaining unit OJP employees and applicants for employment are entitled to contact an EEO Counselor regarding allegations of discrimination or harassment due to sexual orientation. Counseling will be provided in accordance with Paragraph 11.a of this Instruction.

(ii) Formal Complaints. Formal complaints due to sexual orientation will be processed according to Paragraph 11.c of this Instruction. However, the decision reached by the Complaints Adjudication Officer is final with no entitlement to further administrative review.

13. Approval

Laurie Robinson
Assistant Attorney General
OJP 1563.6
November 4, 1997

1. OJP non-bargaining unit employees and applicants for employment may address discrimination allegations based on sexual orientation through the internal administrative EEO process (See 11(c) of this Instruction.) OJP bargaining unit employees must follow the negotiated grievance procedure outlined in article 24 of the Union Contract.

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