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DIRECTIVES TRANSMITTAL Number 560.007
EEOC
7/15/09
SUBJECT: PROCEDURES FOR COMPLAINTS OF DISCRIMINATION BASED ON SEXUAL ORIENTATION
PURPOSE: This Order ensures equal opportunity in federal employment for all individuals, without regard to sexual orientation. It defines sexual orientation and describes the procedures for processing complaints where claim(s) of discrimination are based on sexual orientation. This Order is a part of EEOC’s ongoing efforts to provide a model workplace for its employees.
EFFECTIVE DATE: Immediately.
DISTRIBUTION: This Order will also be made available to employees on InSite.
OBSOLETE DATA AND FILING INSTRUCTIONS: This Order must be made available to all EEOC employees.

/s/
Stuart J. Ishimaru
Acting Chairman

I. Authority:

Executive Order 11478, as amended by Executive Orders 12106 and 13087 (collectively, the Executive Order), prohibits discrimination and ensures equal opportunity in federal employment for all individuals, without regard to race, color, religion, sex, national origin, age, disability, or sexual orientation. These procedures covering complaints of discrimination based on sexual orientation are issued pursuant to the Executive Order and the Chairman’s responsibility on behalf of the Commission for the administrative operations of the Commission. Nothing in these procedures shall be construed as creating any new substantive rights beyond those already in effect. 42 U.S.C. Section 2000e-4(a).

II. Policy:

It is the policy of EEOC to maintain a professional workplace in which individuals are accorded respect, regardless of their differences. This includes ensuring that EEOC employees will not be discriminated against on the basis of race, color, religion, sex, national origin, age, disability, sexual orientation or other improper bases. Further, it is the policy of EEOC to maintain an environment free of harassment, including verbal or physical conduct that creates an intimidating or hostile environment for an individual because of a prohibited basis in this policy.

III. Scope:

This document describes the procedures for processing complaints where claim(s) of discrimination are based on sexual orientation. Complaints of discrimination that contain claims based on race, color, religion, national origin, sex, age or disability will be processed pursuant to 29 C.F.R. Part 1614. When complaints of discrimination contain claims based on sexual orientation and claims based on race, color, religion, national origin, sex, age or disability, dual processing will occur at the appropriate stage.(1) The process described in this document applies to all EEOC employees.

IV. Definition:

Sexual orientation is defined as homosexuality, bisexuality, or heterosexuality, whether such orientation is actual or perceived, and includes association with another individual of a particular sexual orientation.

V. Responsibility:

It is the responsibility of all managers and supervisors to ensure that all personnel actions, policies and practices, and the work environment are free from discrimination and harassment on the basis of sexual orientation. No employee or applicant for employment shall be subjected to retaliation, intimidation, or coercion for raising a claim of discrimination based on sexual orientation, or for participating in procedures addressing sexual orientation issues. Appropriate action, including disciplinary action, shall be taken when conduct or behavior occurs that results in discrimination or harassment of employees or applicants for employment because of their sexual orientation. EEOC Office Directors shall be responsible for enforcing and publicizing this policy and the complaints processing procedures to all employees.

VI. Pre-complaint Processing:

  1. An aggrieved individual who believes that s/he has been discriminated against on the basis of sexual orientation must consult an EEO Counselor prior to filing a complaint in order to try to resolve the matter informally
    1. An aggrieved individual must contact an EEO Counselor within 45 days of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
    2. The Director, Office of Equal Opportunity (OEO), may extend the 45-day time limit when the aggrieved individual shows that s/he was not notified of the time limit and was not otherwise aware of it, or that s/he did not know and reasonably would not have known that the discriminatory matter or personnel action occurred, or that despite due diligence s/he was prevented by circumstances beyond his/her control from contacting an EEO Counselor within the time limit, or for other reasons considered sufficient by the Director, OEO.
  2. The EEO Counselor must advise the aggrieved individual in writing of his/her rights and responsibilities including the duty to mitigate damages, that only matter(s) raised in pre-complaint counseling (or matter(s) like or related to matter(s) raised in pre-complaint counseling) may be alleged in a formal complaint, the duty to keep the Commission informed of his/her current address, and the election of forums for raising employment issues that may or may not address discrimination based on sexual orientation, to include:
    1. Filing a grievance under the negotiated grievance procedure in the applicable collective bargaining agreement;
    2. Filing a complaint under the procedures in this (document);
    3. Filing a grievance under the administrative grievance procedure set forth in EEOC Order No. 570.003;
    4. Filing a complaint with the Office of Special Counsel; or
    5. Filing an appeal with the Merit Systems Protection Board (MSPB) if the action complained of is otherwise appealable to the MSPB.
  3. The EEO Counselor should provide appropriate counseling and attempt to resolve the matter informally, utilizing traditional methods as well as offering to allow the individual to utilize the RESOLVE Program, which when used will extend the pre-complaint counseling period to a maximum of 90 days.
  4. EEO Counselors should inform aggrieved individuals who have sought counseling that their rights regarding initiating a complaint of discrimination based on sexual orientation under these procedures derive from internal Commission policy and not from EEOC regulations which govern the processing of discrimination complaints in the federal sector (29 C.F.R. Part 1614). Counselors should advise aggrieved individuals of the relevant distinctions between complaints based on sexual orientation and those processed under 29 C.F.R. Part 1614, including that under these procedures, in contrast to part 1614, an individual is not entitled to a hearing or appeal and remedies are more limited.
  5. EEO Counselors should also advise aggrieved individuals of their right to anonymity (unless waived) during counseling, and their right to representation throughout the complaint process, including the counseling stage.
  6. The EEO Counselor shall conduct a final interview with the aggrieved individual within 30 days of the date the aggrieved individual brought the matter to the EEO Counselor’s attention. If the counseling period is extended for an additional 60 days by the Commission to facilitate resolution, or the aggrieved individual elects to participate in the ADR process, the pre-complaint process is extended to 90 days. If the matter has not been resolved, counseling has not been extended, or the aggrieved did not elect ADR, the EEO Counselor shall notify the aggrieved individual in writing, no later than 30 days after initial EEO contact, of the right to file a formal complaint. If the aggrieved elected to participate in the ADR process, or pre-complaint filing was extended and no resolution is reached, the EEO Counselor shall notify the aggrieved individual in writing, no later than 90 days after initial EEO contact, of the right to file a formal complaint.
  7. The written notification of the right to file a formal complaint shall inform the aggrieved individual of the right to file a formal complaint within 15 days of receipt of the notice, of the appropriate official with whom to file the complaint, and of the aggrieved’s duty to notify the Commission immediately, in writing, if s/he retains counsel or a representative. The written notice will also advise the aggrieved individual that a complaint that is not filed within the 15-day period may be dismissed as untimely. The EEO Counselor must obtain the signature of the aggrieved individual on the notice with the date of receipt unless the notice was otherwise sent by certified mail, return receipt requested.
  8. The EEO Counselor shall not attempt in any way to restrain the aggrieved individual from filing a complaint.
  9. When advised that a complaint has been filed by an aggrieved individual, the Counselor shall submit a written report within 15 days to the Director, OEO, and the aggrieved individual concerning the issues discussed and actions taken during counseling.

VII Formal Complaints:

  1. Formal complaints of discrimination based on sexual orientation should be filed with the Director, OEO.
  2. Formal complaints must be in writing and must be filed within 15 days of receipt of the notice of right to file a complaint, as described above in paragraphs VI (F) and (G).
  3. A formal complaint must contain a signed statement from the individual claiming to be aggrieved or that individual’s representative. The statement must be sufficiently precise to identify the aggrieved individual, and the office, and to describe generally the action(s) or practice(s) that form the basis of the complaint. The formal complaint must also contain a telephone number and address where the complainant or the representative can be contacted.
  4. A complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint. An amendment must be in writing and contain the same specificity as stated in paragraph C above.
  5. OEO shall acknowledge, in writing, receipt of a formal complaint or amendment and inform the complainant of the date on which the complaint or amendment was filed and the specific accepted claims. The acknowledgment shall also advise the complainant that the Commission will conduct an impartial and appropriate investigation of the complaint within the earlier of 180 days after the last amendment to the complaint or 360 days after the filing of the original complaint.

VIII. Dismissals of Complaints:

The Director, OEO, shall dismiss a complaint or a portion of a complaint:

  1. That fails to state a claim covered under these procedures or states a claim by the same complainant that is pending before or has been decided by the Commission. A complaint may not be dismissed under this section solely because the claims are also being processed under 29 C.F.R. Part 1614;
  2. That fails to comply with the applicable time limits contained in these procedures, unless the Director, OEO, extends the time limits in accordance with paragraph VI (A)(2) of these procedures; or that raises a matter that has not been brought to the attention of an EEO Counselor and is not like or related to a matter that was raised in pre-complaint counseling;
  3. Where the complainant has raised the matter in a negotiated grievance procedure that permits claims of discrimination based on sexual orientation to be raised or where the complainant indicates that s/he has elected to pursue a non-EEO process (e.g., OSC, MSPB);
  4. That is moot or alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory;
  5. Where the complainant cannot be located, provided that reasonable efforts have been made to locate the complainant and the complainant has not responded within 15 days to a notice of proposed dismissal sent to his or her last known address;
  6. Where the Director, OEO, has provided the complainant with a written request to provide relevant information or to otherwise proceed with the complaint, and the complainant has failed to respond to the request within 15 days of receipt, or the complainant’s response does not address the agency’s request, provided that the request included a notice of the proposed dismissal. Instead of dismissing for failure to cooperate, the complaint may be adjudicated if sufficient information for that purpose is available;
  7. That alleges dissatisfaction with the processing of a previously filed complaint; or
  8. Where the agency, strictly applying the criteria set forth in Commission decisions,(2) finds that the complaint is part of a clear pattern of misuse of the EEO process for a purpose other than the prevention and elimination of employment discrimination. A clear pattern of misuse of the EEO process requires:
    1. Evidence of multiple complaint filings; and
    2. Claims that are similar to or identical, lack specificity or involve matters previously resolved; or
    3. Evidence of circumventing other administrative processes, retaliating against the Commission’s in-house administrative processes or overburdening the EEO complaint system.

IX. Investigation of Complaints:

  1. The investigation of complaints shall be managed by the OEO. Any investigation will be conducted by an investigator with appropriate security clearances.
  2. The investigator shall develop an impartial and appropriate factual record upon which to make findings on the claims raised in the written complaint. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.
  3. The investigator may use an exchange of letters or memoranda, interrogatories, investigations, fact-finding conferences or any other fact-finding methods that efficiently address the matters at issue.
  4. The following procedures apply to investigations of complaints:
    1. The complainant, Commission officials, and any EEOC employee shall produce such documentary and testimonial evidence as the investigator deems necessary.
    2. Investigators are authorized to administer oaths. Statements of witnesses shall be made under oath or affirmation or, alternatively, by written statement under penalty of perjury.
    3. When the complainant, or the Commission, or its employees fail without good cause shown to respond fully and in timely fashion to requests for documents, records, affidavits, or the attendance of witness(es), the investigator may note in the investigative record that the Director, OEO, should in appropriate circumstances:
      1. Draw an adverse inference that the requested information or testimony of the requested witness would have reflected unfavorably on the party refusing to provide the requested information;
      2. Consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party;
      3. Exclude other evidence offered by the party failing to produce the requested information or witness;
      4. Issue a decision fully or partially in favor of the opposing party; or
      5. Take such other actions as s/he deems appropriate.
  5. OEO shall ensure that the investigation is completed within 180 days of the date of filing the formal complaint, or where a complaint was amended, within the earlier of 180 days after the last amendment to the complaint or 360 days after the filing of the original complaint. However, the parties may agree to extend the time period not more than 90 days to ensure complete development of the investigative record.
  6. Within 180 days of the filing of the complaint, or where a complaint was amended, within the earlier of 180 days after the last amendment to the complaint or 360 days after the filing of the original complaint, the Commission shall provide the complainant and the complainant’s representative with a copy of the investigative file.
  7. Upon receipt of the investigative file, the parties will be given 30 days in which to make a final attempt at an informal resolution. If at any time during this 30-day period the parties agree that no informal resolution can be reached, they may submit any evidence not collected by the investigator to show a prima facie case, a legitimate non-discriminatory reason or pretext to the Director, OEO.

X. Final Decisions:

  1. Within 30 days of the period specified in paragraph IX (G) above, the Director, OEO, will issue a final decision on the merits regarding each issue in the complaint
  2. A copy of the final decision shall be provided to the complainant and his/her representative, by signature of the complainant and date of receipt unless otherwise sent by certified mail, return receipt requested.
  3. The legal standards for proving discrimination or retaliation on the basis of sexual orientation shall be the same standards used for assessing the merits of discrimination or retaliation complaints based on race, color, sex, national origin, religion, age or disability.
  4. There is no avenue to request a hearing or to appeal, and the final decision of the Director, OEO, is the Commission’s final decision.

XI. Remedies and Relief:

When the Director, OEO, in an individual case of discrimination, finds that an applicant or an employee has been discriminated against, the Commission shall provide relief to the fullest extent permitted by existing laws and regulations. This may include any or all of the following elements in appropriate circumstances:

  1. Notification to all employees of the Commission in the affected facility that the Commission was found to have engaged in reprisal or discrimination based on sexual orientation, that employees have a right to be free from such reprisal or discrimination, and that the Commission is committed to taking corrective or preventive action to ensure that violations similar to those found will not recur.
  2. An offer of placement in the position the person would have occupied absent the discrimination (or a substantially equivalent position), subject to the following:
    1. If the position has not been filled, the Commission may extend an offer of employment to that position unless clear and convincing evidence indicates that the complainant would not have been selected even in the absence of discrimination.
    2. If the position has been filled, the Commission may extend an offer of employment to a substantially equivalent position if such a position exists, unless clear and convincing evidence indicates that the complainant would not have been selected even in the absence of discrimination.
    3. If there are no substantially equivalent positions, then the Commission may grant the complainant priority consideration rights. Priority consideration means that the complainant will receive bona fide consideration by the selecting official for any position for which the complainant is qualified before any other candidate is referred for consideration and that the complainant will not be considered in competition with other candidates and will not be compared with them. While priority consideration does not mean that the complainant must actually be selected, it does mean that once the Commission determines that the complainant meets the qualifications for the position, it must refer the complainant to the selecting official for consideration. All requests for priority consideration shall be consistent with legal requirements for the position.
  3. Monetary awards, subject to the following:
    1. Compensatory damages are not available to employees or applicants for employment for discrimination based solely on sexual orientation.
    2. Employees may be awarded back pay and benefits computed pursuant to 5 U.S.C. § 5596 (5 C.F.R. 550 Subpart H).
    3. Employees may be awarded reasonable attorney’s fees, where back pay is at issue, as authorized by 5 U.S.C. § 5596. In all other situations, attorney’s fees are not authorized.
    4. Applicants for employment are not authorized awards of back pay or attorney’s fees.
  4. Cancellation of an unwarranted personnel action.
  5. Expungement from the Commission’s records of any adverse materials pertaining to the complainant that relate to the discriminatory employment practice.
  6. Full opportunity to participate in the employee benefit denied (e.g., training, preferential work assignments, overtime scheduling).
  7. Commitment that the Commission shall cease from engaging in the specific discriminatory employment practice found in the case.

XII. Settlement Agreements:

  1. The Commission shall make reasonable efforts to settle complaints of discrimination voluntarily and as early as possible in and throughout the administrative processing of the complaint, including the pre-complaint counseling stage and subsequent to the completion of the investigation. Any settlement agreement reached at any time in the process shall be in writing and signed by both parties, and shall identify the claims resolved. A copy of the settlement agreement shall be provided to the complainant, his/her representative, if any, the manager responsible for implementing the settlement agreement, and the Director, OEO. All terms of the settlement agreement must be consistent with the remedies described in paragraph XI of this document, and otherwise shall comply with all Commission policies, requirements and legal authorities.
  2. Any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process described in these procedures, shall be binding on all parties. The Director, OEO, shall maintain all documentation and records supporting compliance with the settlement agreement including records associated with the expungement of the Commission’s files. If the complainant believes that the Commission has failed to comply with the terms of the settlement agreement, the complainant shall notify the Director, OEO, in writing, of the alleged noncompliance, within 30 days of when the complainant knew or should have known of the alleged noncompliance. The complainant may request that the terms of the settlement agreement be specifically implemented or, alternatively, that the complaint be reinstated for further processing, pursuant to these procedures, from the point where processing ceased. Within 60 days of receipt of the claim and after an appropriate investigation, the Director, OEO, will issue a final decision. If the Director, OEO, determines that the settlement agreement has not been complied with and the noncompliance is not attributable to acts or conduct of the complainant, the Commission may order such compliance or order that the complaint be reinstated for further processing from the point where processing ceased. There are no appeals from the final decision issued by the Director, OEO.
  3. The final decision shall be binding on the Commission and the complainant. Commission officials shall report to the Director, OEO, and submit documentation supporting compliance with the final decision. If the complainant believes that the Commission officials have failed to comply with the final decision, the complainant shall notify the Director, OEO, in writing, of the alleged noncompliance consistent with paragraph B above.

XIII. Relationship to Other Procedures:

  1. Nothing in these procedures shall abrogate the rights of any employee to file a complaint of discrimination against the Commission within the purview of the Federal Sector Equal Employment Opportunity Complaint Procedures, 29 C.F.R. Part 1614, or in an appropriate U.S. District Court. If the employee files a civil action in a U.S. District Court on the same matter pending before the Commission, the administrative complaint will be held in abeyance until the U.S. District Court rules.
  2. By electing to pursue a complaint via an applicable negotiated grievance procedure, the administrative grievance procedure, the Office of Special Counsel (OSC), or an appeal with the Merit Systems Protection Board (MSPB), a complainant is deemed to have waived his/her rights to seek redress of the alleged discriminatory actions pursuant to these procedures
  3. The election to proceed pursuant to these procedures is indicated only by the timely filing of a formal complaint; use of the pre-complaint process does not constitute an election for purposes of this section. The determination as to which forum a complainant has elected is made based upon whichever written complaint/appeal/grievance is filed first.
  4. Means of making an election:
    1. Negotiated grievance procedure: When an individual is covered by a collective bargaining agreement that permits claims of discrimination based on sexual orientation to be raised in the negotiated grievance procedure, a person wishing to file a complaint must elect to raise the matter either under these procedures or the negotiated grievance procedure, but not both. An election to proceed under the negotiated grievance procedure is indicated by the filing of a timely grievance.
    2. Administrative Grievance Procedure: When an individual is covered by an administrative grievance procedure that permits claims of discrimination based on sexual orientation to be raised in the administrative grievance procedure, a person wishing to file a complaint must elect to raise the matter either under these procedures or the administrative grievance procedure, but not both. An election to proceed under the administrative grievance procedure is indicated by the filing of a timely grievance.
    3. OSC: A complainant may initially file a complaint based on sexual orientation discrimination with the Commission pursuant to these procedures or with the OSC pursuant to 5 U.S.C. § 2302 (B)(10), but not both. If a complainant initially files with the OSC within 45 days of the matter alleged to be discriminatory, or in the case of a personnel action, within 45 days of the effective date of the action, and the OSC decides it does not have jurisdiction to investigate the complaint containing the claims of sexual orientation discrimination, the complainant may pursue the claim pursuant to these procedures. However, the complainant must initiate pre-complaint counseling within 15 days of receipt of the OSC’s denial of jurisdiction. The date on which the complainant filed his/her complaint with the OSC shall be the date of initial contact with the Counselor, but the 30-day time period in which counseling must generally be completed will not begin to run until the date on which the complainant actually initiates pre-complaint counseling.
    4. MSPB: A complainant may initially file a complaint of sexual orientation discrimination with the Commission pursuant to these procedures or an appeal of an adverse personnel action with the MSPB pursuant to 5 U.S.C. § 7701, but not both. If a complainant initially files with the MSPB within 45 days of the matter alleged to be discriminatory, or in the case of a personnel action, within 45 days of the effective date of the action, and the MSPB decides it does not have jurisdiction to investigate the complaint containing the claims of sexual orientation discrimination, the complainant may pursue the claim under these procedures. However, the complainant must initiate pre-complaint counseling within 15 days of receipt of the MSPB’s denial of jurisdiction as long as the MSPB’s dismissal of the appeal was not based upon the appeal having been untimely filed. The date on which the complainant filed his/her appeal with the MSPB shall be the date of initial contact with the Counselor, but the 30 day time period in which counseling must generally be completed will not begin to run until the date on which the complainant actually initiates pre-complaint counseling.
  5. Where a complainant has elected to pursue a complaint based on sexual orientation discrimination in any of the above mentioned fora, a complaint filed pursuant to these procedures must be dismissed.
  6. If a complainant reports harassment based on sexual orientation to a supervisor or other management official in his/her office or to the Harassment Coordinator and then pursues a claim of harassment pursuant to these procedures, the harassment inquiry shall be processed, as any reported harassment on any other basis, in accordance with the Commission’s Prevention and Elimination of Harassment in the Workplace, EEOC Order No. 560.005 (August 9, 2006).

XIV. Filing and Computation of Time:

  1. All time periods in these procedures stated in terms of days are calendar days unless otherwise stated.
  2. A document shall be deemed timely if it is received or postmarked before the expiration of the applicable filing period, or in the absence of a legible postmark, if it is received within 5 days of the expiration of the applicable filing period.
  3. The time limits in these procedures are subject to waiver, estoppel and equitable tolling.
  4. The first day counted shall be the day after the event from which the time period begins to run and the last day of the period shall be included, unless it falls on a Saturday, Sunday or Federal holiday, in which case the period shall be extended to include the next business day.

XV. Representation and Official Time:

  1. Employees are entitled to a representative of their choosing. Both the complainant and his/her representative, if employees of the Commission, shall have a reasonable amount of time, if otherwise on duty, to prepare the complaint and respond to Commission requests for information.
  2. The Commission is not obligated to change work schedules, incur overtime cost, or pay travel expenses to facilitate the choice of a specific representative to confer.
  3. The complainant and his/her representative, if employed by the Commission and otherwise in a pay status, shall be on official time, regardless of their tour of duty, when their presence is required during any part of the procedure set forth herein.

FOOTNOTES

1. For example, if an employee alleges that he was subjected to harassment for being gay and for being perceived as speaking and acting in an effeminate manner, then his complaint should be dual-processed under these procedures and part 1614.

2. To include: Kessinger v. U.S. Postal Service, EEOC Appeal No. 01970639 (June 8, 1999); Sessoms v. U.S. Postal Service, EEOC Appeal No. 01973440 (June 11, 1998); Manley v. Department of the Air Force, EEOC Appeal No. 01975901 (May 29, 1998); Story v. U.S. Postal Service, EEOC Request No. 05970083 (May 22, 1998); Donnelly v. Department of Energy, EEOC Appeal No. 01972171 (November 17, 1997); Goatcher v. U.S. Postal Service, EEOC Request No. 05950557 (October 18, 1996); Hooks v. U.S. Postal Service, EEOC Appeal No. 01953852 (November 28, 1995); Kleinman v. U.S. Postal Service, EEOC Appeal No. 01943637 (September 22, 1994); Wrenn v. Equal Employment Opportunity Commission, EEOC Appeal No. 01932105 (August 19, 1993); Burne v. U.S. Postal Service, EEOC Request No. 05850299 (November 18, 1985).