A Guide to Legal Standards for Unrepresented Complainants

What are Legal Standards? 

Legal standards are rules that provide a framework for resolving legal disputes. In the context of employment discrimination, these standards outline what the parties must establish through evidence to satisfy the relevant burden of proof or production and either demonstrate that discrimination occurred, or, in the alternative, that discrimination did not occur. 

What is a Burden of Proof?  

A “burden of proof” is a legal concept that dictates which party to a legal dispute must persuade the trier of fact (i.e., the EEOC Administrative Judge (AJ) in the federal sector hearings process) that a particular matter is true. In employment discrimination cases, the complainant always bears the burden of proving that discrimination occurred. The burden of proof is satisfied through evidence. 

What is a Burden of Production? 

A “burden of production” is a legal concept that dictates which party to a legal dispute must produce certain information. Some legal standards require the employer to satisfy a burden of production by stating whether the employer had a legitimate and non-discriminatory reason for taking or failing to take a particular action, and by identifying any such reason(s).  

What is the Standard of Proof? 

The “standard of proof” is the degree to which the party bearing the burden of proof must persuade the trier of fact that a particular matter is or may be true. In federal sector employment discrimination cases, the complainant must always persuade the assigned AJ, by “a preponderance of the evidence,” that discrimination occurred. In other words, the complainant must establish through evidence that it is more likely than not that discrimination motivated the actions or failures to act that are alleged to constitute discrimination. Another common “standard of proof” in federal sector employment discrimination cases is the “clear and convincing” standard, which is a more difficult standard to meet than the preponderance standard; the “clear and convincing” standard usually applies to the agency. For example, and as explained below, in “mixed motive” cases, the agency may avoid liability if it proves by clear and convincing evidence that it would have taken the same action found to be discriminatory even in the absence of its discriminatory intent.     

What is a Protected Class?  

Federal equal employment opportunity (EEO) laws make it illegal to discriminate against an applicant for federal employment or a current federal employee on the basis of their race, color, national origin, sex, religion, disability, age (40 or older), or genetic information. A person’s specific race, religion, age, etc., is known as a protected class; for this reason, we say that discrimination is prohibited if it is based on a person’s membership in any one or more protected class. No protected class is favored over any other. Thus, a White male, for example, is entitled to the same protection against discrimination that is accorded an Asian, Jewish, or disabled female.  

Specific Legal Standards 

Disparate Treatment 

What is a “Disparate Treatment” Claim?  

A disparate treatment claim alleges that an employer intentionally treated an employee or applicant less favorably than another employee/applicant based on the complaining employee’s/applicant’s membership in one or more protected class.  

How Do I Prove Disparate Treatment? 

To prove disparate treatment, the complainant must, in most cases, satisfy the three-part evidentiary test created by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The McDonnell Douglas test relies on indirect (also called “circumstantial”) evidence. The test starts with the complainant, who carries the initial burden of presenting prima facie (or, at first glance) case of discrimination. To do so, the complainant must present facts, which, if unexplained, create an inference of discrimination. More often than not, the complainant satisfies this initial burden by presenting evidence indicating that they were treated less favorably than another employee/applicant belonging to one or more different protected classes who was “similarly situated” to them. If the complainant establishes a prima facie case, a burden of production shifts to the employer, which must state one or more legitimate, non-discriminatory reason for the alleged disparate treatment. If the employer fails to do so, the complainant prevails on their claim. But if the employer states at least one legitimate and non-discriminatory reason, the burden of proof shifts back to the complainant, who must prove by a preponderance of the evidence that the reasons stated by the employer are not true or believable based on the evidence in the record. If the complainant carries that burden, the complainant prevails on their claim. 

The Disparate Treatment Legal Standard 

As explained in Emmett W. v. Dep’t of the Navy, EEOC Appeal No. 2024002399 (Feb. 6, 2025): 

In order to prove his complaint of employment discrimination, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination.i Proof of a prima facie case will vary depending on the facts of the particular case.ii The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions.iii Thereafter, to ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual.iv  

As explained in Sallie M. v. Dep’t of Defense, EEOC Appeal No. 2023001073 (Jan. 13, 2025): 

To establish a prima facie case of disparate treatment, a complainant must show that: (1) they are a member of a protected class; (2) they were subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) they were treated differently than similarly situated employees outside their protected class, or there was some other evidentiary link between membership in the protected class and the adverse employment action.v  

Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions.vi If the Agency is successful, the burden reverts back to the complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the burden of persuasion, and it is their obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason.vii  

When Are Employees/Applicants “Similarly Situated”? 

In most disparate treatment cases, a complainant attempts to carry their burden of establishing a prima facie case by showing that they were treated less favorably than a “similarly situated” employee/applicant. To be similarly situated, “all relevant aspects of the employees' work situation [must be] identical or nearly identical, i.e., the employees report to the same supervisor, perform the same job function, work during the same time periods, and, in instances where the Agency is responding to ‘problem conduct’ (e.g. attendance deficiencies), engaged in the same conduct.”viii 

What is “Pretext”? 

After the agency states a legitimate, nondiscriminatory reason for the alleged disparate treatment, the complainant is given the opportunity to prove the reason is a “pretext.” In the employment discrimination context, a “pretext” is a false or not believable explanation intended to mask the true reason for an employer’s action: discrimination.ix  

Pretext is more than a mere belief or suspicion.x To show pretext, the complainant must point to specific evidence (such as testimony, documents, statistical data, etc.) that shows the agency’s explanation for the alleged discriminatory act in question is not true or believable.xi Management’s knowledge of a complainant’s membership in a protected class, without more, does not constitute pretext.xii Similarly, evidence showing that an agency decision was unwise, or a mistake, without more, does not constitute pretext.xiii The agency has broad authority to make personnel decisions and to set policy. The EEOC will not second-guess such decisions or policies absent a showing of discrimination.xiv 

How Does a Complainant Prove Pretext? 

To prevail on a disparate treatment claim, the complainant must prove that the agency’s stated reason for its actions is not the true reason; that the stated reason is a mere pretext for discrimination. The complainant can prove pretext in a variety of different ways. For example, the complainant may offer evidence that contradicts the documentary evidence produced by the agency, or the testimony from other agency officials. Pretext may also be proved where documents, like emails or memos, or statements or actions, reveal an intent to discriminate. A complainant can demonstrate pretext by showing that they were treated differently than “similarly situated employees” outside their protected category, or that statistical data indicates differences in treatment from one group to another. And complainants can prove pretext by demonstrating that the agency applied its policies unequally or deviated from standard policies or practices without explanation.xv  

How Does a Complainant Prove Pretext in Non-Selection Cases? 

If a complainant alleges that they were discriminated against when they were not selected for a job or promotion, pretext can be proved in any of the ways discussed above. In addition, the complainant can prove pretext by demonstrating that their qualifications for the job/promotion at issue were “plainly superior” to those of the person outside one of their protected classes who was selected for the position.xvi The difference in qualifications must be significant.xvii It is not enough for the complainant to show that they had more years of experience or a more impressive academic degree than the person selected, though both of those facts may be relevant to the analysis.xviii Also, the agency’s decision to preselect a person for the position is not enough to show pretext, unless the complainant can prove that the preselection was motivated by an intent to discriminate.xix 

Direct Evidence: In very few cases, “direct evidence” may be used to prove disparate treatment. If there is direct evidence of discrimination, the McDonnell Douglas test does not apply. 

What is Direct Evidence? 

In the federal employment discrimination context, direct evidence is any action or statement that on its face reveals an intent to discriminate. In other words, it is evidence that, if believed, proves a claim or assertion by itself. There are two types of direct evidence: (1) direct evidence of discrimination and (2) direct evidence of bias. Direct evidence of any kind is rare.  

What is Direct Evidence of Discrimination? 

Direct evidence of discrimination is a statement or action directed toward a particular person that shows the employer intended to discriminate against that person based on their membership in a protected class.xx The statement, “I didn’t hire you because I thought your medical condition would make it difficult for you to do the job,” is direct evidence of discrimination based on disability, assuming the complainant’s medical condition qualified as a disability. The statement is directed at a particular person, namely “you;” and the statement indicates the employer did not hire the person because of their membership in the protected class of people with disabilities. 

What is Direct Evidence of Bias? 

Bias refers to a preference in favor of or against one thing, person or group compared to another. Direct evidence of bias is a statement or action not directed at a particular person that nevertheless shows the employer harbors a bias against members of one or more protected classes.xxi The statement, “I would never hire a woman for that job,” is direct evidence of a bias against women. The statement is not directed at a specific person, but indicates the employer is biased against women, and is evidence that the employer may have acted on that bias when taking a personnel action. Direct evidence of bias may be used to prove pretext, but does not, by itself, prove that disparate treatment occurred.xxii 

Disparate Treatment Based on Age 

What is the Age Discrimination in Employment Act? 

The Age Discrimination in Employment Act or ADEA is a federal law that prohibits discrimination based on age.xxiii But the law only protects employees or applicants for employment aged 40 and older.xxiv For the ADEA to apply, the favored employee must be “substantially younger” than the employee or applicant being harmed. Usually, “substantially younger” means the favored employee or applicant is more than 5 years younger than the employee or applicant being harmed.xxv 

How Does a Complainant Prove Disparate Treatment Based on Age? 

First, the complainant must show: (1) they are 40 years old or older; (2) they suffered an adverse (i.e., negative) employment action; and (3) the adverse employment action occurred because of their age. In most cases, the complainant will prove that age was the reason for the adverse employment action by showing that they were treated differently than a similarly situated, substantially younger employee.xxvi 

If the complainant proves all three of the elements listed above, a burden of production shifts to the agency to state a legitimate, nondiscriminatory reason for the adverse employment action. If the agency does so, the burden of persuasion shifts back to the complainant to prove that the agency’s reason is a pretext for age discrimination.xxvii 

The ADEA Disparate Treatment Legal Standard: 

As explained in Jenee W. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2022003989 (Sept. 19, 2024): 

A complainant may establish a prima facie case of age discrimination by showing that he or she is in the protected group (over age 40) and was treated less favorably than someone substantially younger than the complainant.xxviii   

Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions.xxix If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason.xxx  

As explained in Harry E. v. Dep’t of Homeland Sec., EEOC Appeal No. 2024002188 (Feb. 5, 2025):  

[S]ubstantially younger . . . is generally an age difference in excess of five years.xxxi  

Retaliation/Reprisal 

What is Retaliation/Reprisal? 

Retaliation and reprisal are the same, and the two terms will be used interchangeably throughout this guidance. Simply put, retaliation is an action or failure to act that is intended to and does punish an employee or applicant for employment because the employee or applicant exercised one or more of their rights under the EEO laws enforced by the EEOC. 

The Retaliation/Reprisal Legal Standard: 

As explained in Emmett W. v. Dep’t of the Navy, EEOC Appeal No. 2024002399 (Feb. 6, 2025): 

Complainant can establish a prima facie case of reprisal by showing that: (1) Complainant engaged in protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, Complainant was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment.xxxii Complainant can establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination.xxxiii In general, a complainant can demonstrate a causal connection using temporal proximity when the separation between the employer's knowledge of the protected activity and the adverse action is very close.xxxiv  

As explained in Jeromy C. v. Dep’t of Homeland Sec., EEOC Appeal No. 2024000275 (Feb. 5, 2025):  

Once Complainant has established a prima facie case, the burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions.xxxv Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason.xxxvi  

Complainant must prove that the employer's reasons are not only pretext but are pretext for discrimination.xxxvii A factual issue of pretext cannot be established merely on personal speculation that there was discriminatory intent.xxxviii Pretext means that the reason offered by management is factually baseless, is not the actual motivation for the action, or is insufficient to motivate the action.xxxix  

What is Protected EEO Activity? 

Protected EEO activity is activity protected by one or more of the laws enforced by the EEOC. Protected EEO activity can take either of two forms: (1) opposition or (2) participation. Examples of protected opposition activity include complaining of or reporting alleged discrimination (including harassment); refusing to engage in discriminatory conduct; and requesting a disability accommodation. Examples of protected participation activity include testifying or completing an affidavit in support of another person’s EEO complaint and representing another person with respect to their EEO complaint.xl 

Agency Knowledge/Awareness 

The agency official(s) in question must have had knowledge of the complainant’s protected activity prior to the alleged retaliatory conduct.xli  

What Qualifies as Adverse Treatment? 

To qualify as adverse treatment, agency actions or omissions must be more than undesirable or annoying, even if motivated by an intent to retaliate. The action or failure to act must be “materially adverse.” “Materially adverse” actions are those that might deter or dissuade a reasonable employee or applicant from complaining about discrimination.xlii 

How Can I Establish a Causal Connection? 

Complainants must prove that their protected EEO activity was a motivating factor of the adverse treatment in question. To do this, most complainants rely on the short length of time between their protected activity and the adverse treatment, which creates an inference that the protected activity prompted the adverse treatment—the closer in time the protected activity and the adverse treatment, the stronger the inference. But complainants may also point to words (most notably verbal or written negative references to the complainant’s protected activity) or actions (such as intentionally reassigning all employees who filed an EEO complaint to the least desirable task or team).xliii 

Note: The second and third stages of the retaliation legal standard (i.e., the agency’s statement of a legitimate, non-discriminatory reason and the complainant’s obligation to prove pretext), are identical to the same stages of the disparate treatment legal standard, as set forth above.  

Per Se Retaliation/Reprisal:  

What Does “Per Se” Mean? 

Per se is a Latin term that means “by itself,” “inherently,” or “without more.”  

What is Per Se Retaliation/Reprisal? 

Per se retaliation is a management action that would discourage a reasonable employee from participating in the EEO process. The complainant does not need to show that the agency intended to retaliate. If the action occurred, the agency is automatically liable.xliv 

What are Some Examples of Per Se Retaliation/Reprisal? 

Per se retaliation can take many forms. Any statement made by a management official that could discourage a reasonable employee from engaging in the EEO process, either as a complainant or a witness, will constitute per se retaliation. This can include the following: (1) threats, such as telling an employee they are “kissing their career goodbye;” (2) labeling an employee who engaged in EEO activity as a “troublemaker” or “thorn;” (3) any statement discouraging EEO activity, like stating too many people were filing EEO complaints or that filing an EEO complaint would do no good; and (4) telling someone without a need to know, including a management official, that an employee engaged in EEO activity.xlv  

The Per Se Retaliation/Reprisal Legal Standard: 

As explained in Kellye C. v. Dep’t of State, EEOC Appeal Nos. 2023003028 and 2023004161 (Jan. 21, 2025): 

EEOC Regulation 29 C.F.R. § 1614.101(b) provides that no person shall be subject to retaliation for opposing any unlawful discriminatory practice or for participating in any stage of the EEO complaint process. "When a supervisor's behavior has a potentially chilling effect on the ultimate tool that employees have to enforce equal employment opportunity, the behavior is a per se violation."xlvi Central to a finding of per se reprisal is that the conduct is reasonably likely to have a chilling effect on deterring the complainant or a reasonable employee from engaging in, or pursuing, protected activity.xlvii  

As further explained in Opal V. v. Dep’t of Defense, EEOC Appeal No. 2021000649 (Aug. 31, 2022): 

Agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices.xlviii This duty extends to every aspect of agency personnel policy and practice in the employment, development, advancement, and treatment of employees. Agencies are obligated to "ensure that managers and supervisors perform in such a manner as to insure a continuing affirmative application and vigorous enforcement of the policy of equal employment opportunity.xlix  

Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and Title VII.l When a supervisor's behavior has a potentially chilling effect on use of the EEO complaint process the ultimate tool that employees have to enforce equal employment opportunity - the behavior is a violation of Title VII's anti-retaliation prohibition.li  

Harassment 

What is Harassment? 

Harassment is unwanted verbal or physical conduct based on and related to one or more of a person’s protected classes. 

What are Some Examples of Harassing Conduct? 

As explained in Clayton C. v. Dep’t of Homeland Sec., EEOC Appeal No. 2023004506 (Nov. 20, 2024): 

Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. 

What is a Hostile Work Environment? 

A hostile work environment exists when harassing conduct is so severe or pervasive (i.e., widespread or common) that a reasonable person in the complainant’s position would have found the conduct hostile or abusive.  

The Hostile Work Environment Legal Standard: 

As explained in Emmett W. v. Dep’t of the Navy, EEOC Appeal No. 2024002399 (Feb. 6, 2025): 

In order to establish a prima facie case of harassment, Complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that he is a member of a statutorily protected class; (2) that he was subjected to unwelcome conduct related to his protected class; (3) that the harassment complained of was based on his protected class; (4) that the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer.lii The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances.liii  

In other words, to prove his hostile work environment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis . . . . Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 

Does Sexual Harassment Differ from Harassment on Any Other Basis? 

The only difference between sexual harassment and harassment on any other basis is that the nature of the alleged harassing conduct will be sexual in nature.liv 

Can One be Subjected to Retaliatory Harassment? 

Yes. Harassment based on a person’s protected EEO activity can and does occur in the workplace. As explained in Hallie X. v. U.S. Postal Serv., EEOC Appeal No. 2024003770 (Mar. 18, 2025): 

In order to establish a prima facie case of harassment, Complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that she is a member of a statutorily protected class; (2) that she was subjected to unwelcome conduct related to her protected class; (3) that the harassment complained of was based on her protected class; (4) that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer.lv The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances.lvi  

In other words, to prove her hostile work environment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis; in this case, her . . . engagement in prior EEO activity. Only if Complainant establishes both of those elements hostility and motive will the question of Agency liability present itself. 

To ultimately prevail on a claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a "reasonable person from making or supporting a charge of discrimination.lvii Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal- based harassment present itself.lviii  

How Does One Establish a Basis for Agency Liability? 

Manager/Supervisor Harassment: 

As explained in Hattie K. v. U.S. Postal Serv., EEOC Appeal No. 2024000957 (Jan. 22, 2025): 

[A]n employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee.lix However, where the harassment does not result in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) the employer can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating that it exercised reasonable care to prevent and correct promptly any harassing behavior; and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.lx  

Co-Worker Harassment: 

As explained in Clinton R. v. Dep’t of Defense, EEOC Appeal No. 2023000902 (Sept. 24, 2024): 

In the case of coworker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. 

Reasonable Accommodations and Related Topics: 

What are Reasonable Accommodations? 

Reasonable accommodations are modifications or adjustments to the work environment, or to the manner or circumstances under which a job is typically performed, that enable a qualified person with a disability to perform the essential functions of the job. 

What is a Disability Under the Law? 

As explained in Elroy S. v. Social Sec. Admin., EEOC Appeal No. 2024001446 (Feb. 10. 2025): 

An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment.lxi  

Major life activities include such functions as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; and the operation of a major bodily function.lxii An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to the ability of most people in the general population.lxiii  

The Reasonable Accommodations Legal Standard: 

As explained in Almeta W. v. U.S. Postal Serv., EEOC Appeal No. 2023000363 (Mar. 20, 2025): 

An agency is required to make reasonable accommodation to the known physical and mental limitations of an individual with a disability unless the agency can show that accommodation would cause an undue hardship.lxiv In order to establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability as defined by 29 C.F.R. § 1630.2(g); (2) she is "qualified" as defined by 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation.lxv  

"The term 'qualified,' with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position."lxvi The term "position" is not limited to the position held by the employee but may also include positions that the employee could have held as a result of reassignment. Therefore, in determining whether an employee is "qualified," an agency must look beyond the position which the employee presently encumbers.lxvii  

What is the Interactive Process? 

As explained in Sade M. v. Social Sec. Admin., EEOC Appeal No. 2024001240 (Mar. 10, 2025): 

Once an employer becomes aware of the need for an accommodation of an employee's disability, the employer may engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations.lxviii An Agency may choose among reasonable accommodations as long as the chosen accommodation is effective, and while the preference of the individual with a disability should be given primary consideration, an Agency has the ultimate discretion to choose between effective accommodations.lxix  

What Happens if an Agency Fails to Engage in the Interactive Process? 

As explained in Lela M. v. Dep’t of Veterans Aff., EEOC Appeal No. 2023004744 (Mar. 6, 2025): 

Liability for a failure to engage occurs when the failure to engage in the interactive process results in the agency's failure to provide reasonable accommodation.lxx The sole purpose of the interactive process is to facilitate the identification of an appropriate reasonable accommodation, and an agency's failure to engage in this process does not give rise to a separate cause of action because the interactive process is not an end in itself.lxxi  

Is there an Undue Hardship Exception or Defense? 

As explained in Elroy S. v. Social Sec. Admin., EEOC Appeal No. 2024001446 (Feb. 10, 2025): 

Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship.lxxii  

The term “[u]ndue hardship means, with respect to the provision of an accommodation, significant difficulty or expense incurred by a covered entity . . . ."lxxiii 

Examples of undue hardships include but are not limited to: “eliminating essential job functions and making reassignments that violate collective bargaining agreements.”lxxiv 

Can Reassignment be a Reasonable Accommodation? 

Yes. But “reassignment is the reasonable accommodation of last resort and is required only after it has been determined that there are no effective accommodations that will enable the complainant to perform the essential functions of her current position, or all other reasonable accommodations would impose an undue hardship.”lxxv 

Improper Disclosure of Medical Information: 

Under the Rehabilitation Act and Commission regulations, confidential medical information obtained regarding an employee may only be shared with others on a “need to know” basis.lxxvi To be improper, disclosures must involve a specific medical condition, diagnosis, or symptoms.lxxvii Such improper disclosures result in per se violations of the Rehabilitation Act, regardless of whether the disclosure was intentional or the result of negligence or other mistake. Examples of improper medical disclosures include a situation where a supervisor without a need to know is given medical diagnoses, and a situation where medical documents are left unattended and unsecured.lxxviii  

There are three exceptions to the confidentiality requirement: (1) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; (2) first aid and safety personnel may be informed, where appropriate, if the disability may be relevant to necessary emergency treatment; and (3) Government officials investigating compliance with the Rehabilitation Act will be provided relevant information on request.lxxix As an example of these exceptions, the Commission found no per se violation where the complainant’s supervisor consulted with an agency official and physician to ascertain how to accommodate the complainant’s medical condition. The disclosures in that case were to individuals with a “need to know.”lxxx 

Fitness for Duty Examinations and Medical Inquiries: 

Under Commission regulations, a fitness for duty examination may be ordered only if it is job-related and consistent with business necessity.lxxxi This means that the employer must have a reasonable belief based on objective evidence that an employee will be unable to perform the essential functions of their job or pose a “direct threat” because of a medical condition.lxxxii  

Whether the employee is an individual with a disability is irrelevant to the issue of whether the employer properly requested that they submit to a medical examination because the Rehabilitation Act’s limitations regarding disability-related inquiries and medical examinations apply to all employees.lxxxiii  

Objective evidence is reliable information, either directly observed or provided by a credible third party, that an employee may have or has a medical condition that will interfere with their ability to perform essential job functions or will result in a direct threat.lxxxiv It is the burden of the employer to show that its disability-related inquiries and requests for medical examination are job-related and consistent with business necessity.lxxxv  

EEOC regulations define “direct threat” as: 

a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a “direct threat” shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: 

(1) The duration of the risk; 

(2) The nature and severity of the potential harm; 

(3) The likelihood that the potential harm will occur; and 

(4) The imminence of the potential harm.lxxxvi 

Miscellaneous Legal Standards 

The Equal Pay Act of 1963: 

The Equal Pay Act of 1963 (EPA) prohibits sex-based wage discrimination in employment. The United States Supreme Court explained the requirements for establishing a prima facie case of discrimination under the EPA in a case called Corning Glass Works v. Brennan.lxxxvii To establish a prima facie case of discrimination under the EPA, the complainant must show that they received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort, and responsibility, under similar working conditions within the same establishment.lxxxviii Once the complainant has met this burden, an employer may avoid liability only by showing that the difference in pay is justified under one of the four affirmative defenses set forth in the EPA: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production of work (also referred to as an incentive or piecework system); or, (4) a differential based on any factor other than sex.lxxxix  

The Genetic Information Non-Discrimination Act of 2008: 

Title II of the Genetic Information Non-Discrimination Act of 2008 (GINA) prohibits agencies from discriminating against employees, former employees, or applicants for employment because of their or their family members’ genetic information.xc Genetic information means information about (i) an individual's genetic tests; (ii) the genetic tests of that individual's family members; and (iii) the manifestation of a disease or disorder in family members of such individual (family medical history).xci  

Are Contractors Covered by the Federal Sector EEO Laws? 

Sometimes. In most cases, an individual filing an EEO complaint against a federal agency must be an employee, former employee, or applicant for employment at that agency.xcii However, in the case of individuals who perform work for an agency pursuant to a contract between the agency and an outside organization (i.e., a “contractor”), the agency may be considered a “joint employer” of the contractor if it exercises a certain level of control over them.xciii “The term ‘joint employer’ refers to two or more employers that each exercise sufficient control of an individual to qualify as the worker's employer.”xciv Contractors may file federal sector EEO complaints against joint-employer agencies. If the agency does not qualify as a joint employer, however, the contractor may only pursue a discrimination claim against the outside organization, and outside the federal sector process. Whether an agency qualifies as a “joint employer” is a fact specific determination within the discretion of the AJ. There are many factors that the AJ may consider when making the determination, none of which are determinative.xcv Some of the factors and questions that may be addressed in this analysis include: 

• Who controls when, where, and how the worker performs the job? Who assigns work and projects to the worker? 
• Where is the work performed? Who furnishes the tools, materials, and equipment to perform the work? 
• Is there a continuing relationship between the agency and the worker, and what is the duration of such relationship? 
• Who sets the worker’s schedule? Who pays the worker? Who withholds taxes on the worker’s pay? Who provides benefits to the worker? 
• Who has authority to terminate the worker’s employment?xcvi 

This list is not exhaustive. Not all or even most of the listed criteria need be met. Rather, the determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee or as an independent contractor relationship.xcvii 

What is a “Mixed Motive” Case?  

“Mixed motive” cases are cases in which the evidence shows that the adverse employment action in question was motivated both by legitimate, non-discriminatory reasons and unlawful discrimination.xcviii If the complainant proves by a preponderance of the evidence that discrimination was a “motivating factor” leading to the adverse employment action, the agency is required to prove by clear and convincing evidence that the adverse action would have taken place regardless of the discriminatory motive. In other words, the Agency must show, by clear and convincing evidence, that it would have made the same decision based on the legitimate, non-discriminatory reasons alone.xcix If the Agency successfully proves that it would have taken the adverse employment action even without the discriminatory motivation, the complainant will be entitled to limited relief/damages, including declaratory relief (i.e., a formal statement that discrimination occurred); injunctive relief (i.e., a formal order that an agency take or stop taking a particular action); and attorney’s fees and costs. But the complainant will not be entitled to personal relief like reinstatement, back pay, or compensatory damages.c 

What is a “Cat’s Paw” Theory of Discrimination? 

As explained in Yessenia H. v. U.S. Dep’t of Justice, EEOC Appeal No. 2023005231 (Oct. 17, 2024): 

Under a cat's paw theory, animus and responsibility for an adverse action can be attributed to a [person] who was not the ultimate decision maker, if that [person] intended the adverse action to be a consequence of his discriminatory conduct. 

In other words, an agency can be found liable for discrimination even if the supervisor/manager who took the adverse employment action was not motivated by discriminatory intent, where that supervisor/manager was influenced to act by someone who was motivated by discriminatory intent. This can occur in either of two ways: (1) where a coworker with discriminatory intent had influence or leverage over the unbiased supervisor/manager responsible for taking the adverse employment action; or (2) where a supervisor/manager with discriminatory intent used an unbiased supervisor/manager as his or her conduit (or “cat’s paw”) to effectuate a discriminatory outcome.ci