Several agencies have jointly published a guide to employee rights and complaints for LGBT workers, available at http://www.opm.gov/LGBTguide.
Tips for the complaint process:
- Document everything. Your complaint will be more effective if you can present solid factual information. It is important to begin collecting your evidence and keeping records in preparation. Keep a log of the date, time, location, witnesses, and people involved in any events that were disrespectful or discriminatory. Also keep any documents that your agency gives you, such as performance reviews or disciplinary notices. If you present your case in an organized way, you raise the chance of your complaint getting full attention and an appropriate resolution.
- Stay on top of deadlines. Timelines for the formal complaint process are very strict, and they are shorter for federal employees than for private workers. If you feel that you have experienced a pattern of ongoing discrimination, it is safest to assume that the time limit began as soon as you recognized that pattern. Make sure you make a note of the date when you first file your complaint. Mark your calendar at every stage of the process so that you know all the relevant deadlines.
- Be assertive. Do not assume that once you file a complaint, the complaint process will proceed automatically. Check in periodically to find out what is happening with your case. If the action or inaction of the EEO counselor handling your case is causing you problems at work, call that to their attention.
- Be specific. You cannot rely on your local EEO office to state the basis of your claim, or to state it correctly. You must state that you are claiming that the acts you describe constitute sex discrimination. Describing the acts that you believe are discriminatory is not usually enough.
- Be persistent. In the past, Federal EEO offices have dismissed informal and formal complaints from transgender employees, sometimes without investigation. To keep your claim alive after a dismissal or denial, you must appeal it upward at every stage. No dismissal is final until it comes from the EEOC, and even then, you have the right to appeal to a court. Again, you must meet all deadlines in order to keep your rights.
Union grievance procedures
If you are a member of a union, your union will have a negotiated grievance procedure to resolve disputes between employees and your agency. This process may specifically exclude discrimination complaints, or may have rules about the interaction between the grievance procedure and your agency’s EEO process. Your union membership will not prevent you from bringing a formal EEO complaint, but bringing a formal EEO complaint may prevent you from using your union procedure. Your union procedure may have strict deadlines and fewer safeguards or appeal rights than an EEO complaint, but it may also be faster or require less legal assistance. Contact your union representative for details and decide how it would be best for you to proceed based on the seriousness of your issue, and your relationship with your union.
Your agency’s internal EEO processes: Counseling or Alternative Dispute Resolution.
The first step is to contact an EEO Counselor at the agency where you work or where you applied for a job. You must contact your agency’s EEO Counselor within 45 days from the day the discrimination occurred or you became aware of the discrimination. (Note: this is a shorter time period than applies to the private sector.)
You may choose to participate in either counseling to resolve the problem or Alternative Dispute Resolution (ADR) if your agency offers it. Ordinarily, counseling must be completed within 30 days and ADR within 90 days. If the counseling or ADR are unsuccessful your EEO Counselor will give you notice of how to file a formal complaint, which must be done within 15 days.
Formal complaint and investigation.
If you choose to file a formal complaint, you should know that some agencies list gender identity as a separate category for EEO complaints. However, only complaints filed under the category of sex discrimination can be appealed to the EEOC, as discussed below. Regardless of what an EEO counselor may tell you, you may file a complaint of discrimination based on your transgender status under the category of sex discrimination.
Once you have filed a formal complaint, your agency will review the complaint and decide whether the case should be dismissed for a procedural reason (for example, you contacted the EEO counselor too late or you filed your claim too late). If your agency doesn’t dismiss the complaint, it will conduct an investigation. The agency has 180 days from the day you filed your complaint to finish the investigation.
If your claim is dismissed with a statement that it is not covered under Title VII as sex discrimination, please contact NCTE immediately. We will help you appeal that procedural dismissal to the EEOC.
After the investigation.
When the investigation is finished, your agency will issue a notice giving you two choices: either request a hearing before an EEOC Administrative Judge or skip the hearing stage and ask your agency to issue a final order as to whether discrimination occurred. In either case, your agency will ultimately issue a final order on your complaint. You will then have the right to appeal that final order to the EEOC.
Hearing before an EEOC Administrative Law Judge.
If you wish to have a hearing, you must make your request in writing within 30 days from receiving notice about your hearing rights. An EEOC Administrative Judge will conduct the hearing, make a decision, and order relief if discrimination is found. Once your agency receives the Administrative Judge’s decision, the agency will issue a final order which will tell you whether the agency agrees with the Administrative Judge and if it will grant any relief the judge ordered. The agency will have 40 days to issue the final order, which will also tell you about your right to appeal to the EEOC, your right to file a lawsuit, and the deadlines for both.
Appealing your agency’s final order to the EEOC.
If your agency issues a final order and no discrimination is found, or if you disagree with some part of the decision, you have the right to appeal the decision to the EEOC in Washington, DC, or challenge it in court. If you appeal the order, your appeal will be decided by the EEOC’s Office of Federal Operations in Washington, DC.
You must file your appeal with the EEOC no later than 30 days after you receive your agency’s final order. If you do not agree with the EEOC’s decision on your appeal of the agency’s final order, you can ask for a reconsideration of that decision within 30 days. The agency also has the right to ask the EEOC to reconsider the decision. Once the EEOC has made a decision on your request for reconsideration, the decision is final. If your agency has lost, the agency cannot appeal to court. However, if you have lost before the EEOC, you may appeal the EEOC’s decision in court.