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U.S. Department of Commerce
Manual for Processing Discrimination Complaints
Part II,
Section A, Chapter 3
THE INFORMAL EEO COMPLAINT PROCESS

The informal EEO Complaint process -- also called EEO Counseling or pre-complaint processing -- is governed by EEOC regulations at 29 C.F.R. Section 1614.105, EEOC MD-110 and Department policy. Employees and applicants must cnsult with an EEO Counselor before filing a formal EEO complaint.

Employees or applicants meet with EEO Counselors employed or contracted by the operating unit where the discrimination allegedly occurred occurred to get information on the EEO Complaint and mediation processes, unless a potential conflict of interest exists. Examples of situations in which a conflict of interest may exist are:

  • the Complainant works in the EEO office that would normally handle counseling;

  • the Complainant is in the EEO Officer's chain of command;

  • the case involves a determination as to whether someone in the EEO Officer's chain of command took a discriminatory action.

If the EEO Officer determines that the matter involves a conflict of interest, he/she must consult with the Program Implementation Division (PID) to arrange for cross-counseling. Cross-counseling is counseling by a person employed or contracted by another Departmental bureau or another federal agency.

Role of the EEO Counselor.

EEO Counselors are impartial. They are neither employee advocates nor management representatives. Their primary duties are:

  1. To identify the issues and bases of discrimination being raised;

  2. To provide information about the EEO complaint process, i.e., EEO Counseling and Mediation, as well as other avenues of redress in which the concerns raised in counseling can be addressed. This includes:

    • advising the complainant and responding agency officials about the complaint process and their respective roles and responsibilities in the process;

    • providing required notices as described below;

  3. To inform aggrieved individuals of the need to either elect mediation or elect EEO Counseling, when mediation is appropriate;

  4. To advise the EEO Officer or the Bureau ADR Coordinator if mediation is elected.

  5. To conduct an inquiry if EEO Counseling is elected or if mediation is not an option. The extent of the inquiry depends on the issue(s) raised, and can include contacting human resource representatives and other agency officials who can provide information necessary to address and resolve the concern(s). The purpose of the inquiry is not to conduct an investigation into the issues; rather, the purpose is to attempt an informal resolution of the issues raised.

  6. To advise the aggrieved individual of the right to file a formal complaint of discrimination if resolution efforts are unsuccessful.

  7. To prepare a written report of the counseling activities sufficient to determine whether all required counseling actions have been taken and resolve any jurisdictional questions that may arise when a formal complaint is filed.

Anonymity during Counseling. Aggrieved individuals have the right to remain anonymous during the counseling process, but must be advised that this could hinder the Counselor's efforts to achieve resolution. Protecting the anonymity of the complainant while also addressing the issues is possible in many counseling situations. For example, where one action affects many individuals -- such as a selection decision or reduction-in-force actions -- it is often possible to conduct an adequate inquiry without revealing the identity of the complainant. However, where an action affects only the complainant, the request for anonymity makes it difficult for the Counselor to obtain adequate information to attempt to resolve the issues.

Representation during the Informal Complaint Process. An aggrieved person has a right to a representative of his/her choice during the informal complaint or pre-complaint process, including informal EEO counseling or mediation. The representative need not be an attorney. Neither the EEO Counselor nor other EEO staff may serve as the aggrieved person's representative. The Counselor should ask the aggrieved person to give notice if s/he appoints a representative, including providing the representative's name and contact information.

Regulatory notices. During the complaint or pre-complaint process, the Counselor will provide the aggrieved person with the following written notices. If the aggrieved person has a representative, copies of these notices will also be provided to the representative.

  • At the initial interview contact, the EEO Counselor shall provide the aggrieved person: 1) a written notice of the individual's rights and responsibilities in the informal or pre-complaint process; 2) a copy of the DoC EEO Mediation Guide; and 3) if appropriate, a Pre-Complaint Election Form, which will seek the employee’s decision to elect mediation or EEO Counseling .

  • At the conclusion of either EEO Counseling or mediation, if a resolution to the dispute has not been reached, the Counselor shall provide the aggrieved person the appropriate Notice of Right to File a Formal Discrimination Complaint.

Delivery of Notices. The Counselor shall deliver these notices to the aggrieved person by such means that receipt can be documented. The most common methods are by certified mail, return receipt requested, and hand-delivery by the Counselor. When the Counselor hand-delivers a notice, the signature of the aggrieved person or representative and the delivery date must be secured.

Stages in the Informal Complaint or Pre-Complaint Process.

Initial Interview. At the initial meeting with aggrieved person, the EEO Counselor shall:

  • determine the bases and issues raised by the aggrieved person;

  • explain the aggrieved person's rights and responsibilities in the informal or pre-complaint process and provide the aggrieved person with a written notice of rights and responsibilities;

  • provide the aggrieved person with a written notice of rights and responsibilities;

  • explain the requirement to elect EEO Counseling or to elect mediation and when mediation is an option, provide the employee with a copy of the DoC EEO Mediation Guide;

  • if the issues can also be raised in another forum, advise the aggrieved person if there is a need to elect one forum and of the time limits for filing claims;

  • when appropriate, provide the aggrieved person with a Pre-Complaint Election Form, on which he or she will indicate his or her election of EEO Counseling or mediation. The aggrieved person should be instructed to return the signed election form within 5 days, to ensure adequate time for counseling or mediation.

  • inform the aggrieved person of the right to anonymity and representation in the during either EEO Counseling or mediation.

Inquiry. If the employee elects EEO counseling, the EEO Counselor will conduct an inquiry. The primary purpose of the inquiry is to identify management's rationale for the action(s) the aggrieved person believes is (are) discriminatory. This inquiry also serves as an important starting point in efforts to informally resolve the issue(s).

When meeting with any official regarding concerns raised in the informal counseling process, the EEO Counselor should describe the complaint process and the Counselor's role.

Efforts to achieve resolution of the issues. In seeking resolution of the concern(s) of discrimination brought forth by the aggrieved person, the Counselor should begin at the lowest organizational level possible. This approach recognizes that bringing the controversy to a higher level of the organization may serve to entrench parties in their positions. In most instances, informal resolution voluntarily developed by the interested parties is the best outcome of the informal counseling process. If resolution is reached during EEO Counseling, the Counselor shall prepare a written resolution agreement. The procedures for finalizing resolution agreements are described in Chapter 8.

Mediation. Mediation involves the intervention of a third person, or mediator, into a dispute to assist the parties in negotiating jointly acceptable resolution of issues in conflict. The mediator meets with the parties at a neutral location where they can discuss the dispute and explore a variety of solutions. Each party is encouraged to be open and candid about his/her point of view. The mediator, as a neutral third party, can view the dispute objectively and assist the parties in discussing alternatives and options that they might not have considered. Mediation may be a faster, more productive, and more rewarding process for resolving an EEO dispute. Since this ADR procedure is designed to cut the time and cost of traditional administrative and legal procedures, the dispute resolution rate when using mediation is greatly enhanced.

Participation by the parties in the mediation process is voluntary. If the aggrieved person elects mediation, the EEO Counselor will halt counseling and will forward the Pre-Complaint Election Form to the bureau EEO Officer or ADR Coordinator. The EEO Officer or the ADR Coordinator will contact the management official to determine his/her willingness to participate in mediation. If the management official is receptive to mediation, the EEO Officer or ADR Coordinator will make arrangements for the mediation.

If the dispute is resolved during mediation, the parties will develop a settlement agreement in accordance with the procedures set forth in Chapter 8. If the dispute is not resolved during mediation, the case is returned to the EEO Counselor for final processing.

Final Interview. If any issues remain unresolved at the conclusion of counseling or mediation, the Counselor will conduct a final interview with the complainant. At the final interview, the Counselor shall:

  • summarize the efforts made to resolve the issue(s) raised in counseling;

  • inform the aggrieved person of the right to file a formal complaint on any unresolved issue(s) brought forth in the informal process and the time limit for filing;

  • provide the aggrieved person with the appropriate written "Notice of Right to File within 15 days" a formal discrimination complaint; and

  • If the aggrieved person has a representative, the Counselor should obtain the representative's name and address and inform the aggrieved person that a copy of this notice will be sent to the representative. The Counselor should also inform the aggrieved person that if the representative is an attorney, the applicable time period for filing a formal complaint begins when the attorney receives the Notice of Right to File within 15 days.

Counselor's Report. If a formal complaint is filed, the EEO Officer will inform the Counselor. Within 15 calendar days of receiving this notification, the Counselor shall submit a Counselor's Report summarizing the allegations raised, persons contacted, and information obtained during counseling.

Time Limits, Duration, and Extension of Time. EEOC regulations specify certain time limits for the informal complaint or pre-complaint stage, which are outlined below.

Initial contact. To preserve the right to file a formal complaint, the aggrieved person must contact an EEO Counselor within 45 days of the act believed to be discriminatory, the effective date of an alleged discriminatory personnel action, or the date the aggrieved person knew or should have known of the alleged discriminatory action. While no one will be turned away from counseling, observing this time limit will prevent dismissal of a formal complaint for untimely Counselor contact. An aggrieved person is considered to have initiated the informal complaint or pre-complaint process by contacting the EEO Counselor, the bureau EEO Office, or the Department’s OCR and indicating a desire to receive counseling. The word ‘‘counseling’’ need not be used. EEO staff should record the date of such contacts.

The reasonable suspicion standard. The ‘‘reasonable suspicion’’ standard is used to determine when the 45 day limitation period is triggered. Under this standard, the limitation period is triggered when an aggrieved person should reasonably suspect discrimination, but before all the facts that would support a charge of discrimination have become apparent.

Duration of the Informal Complaint or Pre-Complaint Process. If the aggrieved person elects EEO Counseling, the Counselor has 30 days from the initial contact to attempt to reach resolution of the aggrieved individual’s concern(s). This period may be extended in the following circumstances:

If the aggrieved person agrees to continue EEO counseling efforts, counseling may be extended up to 30 additional days. The aggrieved person must agree to the extension in writing.

If the aggrieved person elects mediation, the informal complaint or pre-complaint process may be extended for an additional (60) days. In no case, should the informal complaint process be extended beyond 60 days unless the complainant elects mediation. When mediation is elected, the informal complaint period may be extended up to 90 days.


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Page last updated: Friday, May 10, 2002