DLMS 6 - Employee Relations

DLMS 6-100: Equal Employment Opportunity Program

100 Equal Employment Opportunity Complaint Program

101 Purpose

The mission of the Department of Labor (DOL) is to foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights. DOL prides itself as a model employer and, to ensure model behavior, DOL must strive to protect its employees from unlawful discrimination, discriminatory harassment, and retaliation for engaging in protected Equal Employment Opportunity (EEO) activity.

This sentiment is expressed in the Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020 (Cummings Act), which amends the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act). The Cummings Act was passed to improve transparency by requiring agencies to publish public notices of findings of discrimination against the agency and bolster accountability by requiring agencies to notate the adverse action and the reason for the action in an employee’s personnel record when such action is taken due to an act of discrimination or retaliation.

Additionally, a focus on Diversity, Equity, Inclusion, and Accessibility (DEIA) is critical in ensuring DOL serves as a model employer where individuals are treated respectfully and professionally and where we can draw upon the differences of a diverse and inclusive workforce. Creating an equitable work culture free from unlawful discriminatory, harassing, and retaliatory behavior is a fundamental right of all DOL employees, and applicants for DOL employment, who should be provided a full and fair opportunity for employment, retention, and advancement. It is just as critical that DOL maintains a fair and impartial program for the processing and resolution of EEO complaints.

To that end, the purpose of DOL’s EEO Policy is to establish and assign responsibility for adhering to and enforcing EEO laws, which include statutes, regulations, case law, and Executive Orders relevant to Federal employment at DOL. This includes ensuring the neutral and impartial processing of complaints related to unlawful discrimination, harassment, and retaliation, as well as overseeing the Affirmative Employment Program (AEP).(1)

In accordance with the Cummings Act, DOL’s EEO Policy also outlines procedures for reporting whether disciplinary action has been proposed when laws concerning antidiscrimination, antiharassment, whistleblower protection, and antiretaliation are violated. This includes recording violations in the personnel files of individuals found to have engaged in such conduct and posting notices of unlawful discrimination or retaliation on DOL’s public-facing website.

To facilitate review and use of this Chapter, the following acronyms are defined given their use throughout this Chapter:

ADR: Alternative Dispute Resolution
AEP: Affirmative Employment Program
AJ: Administrative Judge
ARB: Administrative Review Board
CRC: Civil Rights Center
CSR: Counselor’s Summary Report
DEIA: Diversity, Equity, Inclusion and Accessibility
DOL: Department of Labor
EEO: Equal Employment Opportunity
EEOC: Equal Employment Opportunity Commission FAA: Final Agency Action
FAA: Final Agency Action 
FAD: Final Agency Decision
OFO: EEOC’s Office of Federal Operations
OHR: Office of Human Resources
OIG: Office of Inspector General
MSPB: Merit Systems Protection Board
NRTF: Notice of Right to File a Formal EEO Complaint
ROI: Report of Investigation
SOL: Office of the Solicitor 
WECO: Workplace Equality Compliance Office

To avoid repetition, the Chapter has endeavored not to spell out acronyms after their first use and/or when the term is defined.

102 Scope

The provisions of the EEO program, including the AEP, apply to all DOL personnel, DOL agencies, and activities.

103 Objectives

  1. The objective of the EEO complaint program is to provide a fair and impartial program for the processing and resolution of EEO complaints alleging discrimination, discriminatory harassment, retaliation for engaging in protected EEO activity, and/or denial of equal pay or compensation by DOL, based on the following protected characteristics or motivations:

    • race (including race-related characteristics, which may include an individual's grooming and hair);
    • color;
    • religion or religious creed (including seeking a reasonable accommodation of religious beliefs, observances, or practices);
    • physical or mental disability (including seeking a reasonable accommodation for physical or mental disability), having a history of a disability, or being regarded as having a disability;
    • sex (including pregnancy, childbirth, lactation, abortion, and related medical conditions as well as seeking a reasonable accommodation for medical conditions related to pregnancy; sexual orientation; transgender status; gender identity; gender expression; intersex traits; sex stereotyping; or sex characteristics);
    • national origin (including ethnicity, accent, use of a language other than English, and immigration experience);
    • ancestry (including ancestry-related characteristics, which may include an individual's dress);
    • age (40 years and up);
    • medical condition;
    • genetic information;
    • parental status; and
    • retaliation for engaging in protected EEO activity (e.g., opposing discrimination, including harassment, or filing complaints; requesting a reasonable accommodation for religious beliefs, observances, or practices, disability, or pregnancy and related medical conditions).

    This list shall be referred to as “protected characteristics or motivations” throughout this Chapter. For all of the aforementioned protected characteristics or motivations, employees and applicants shall not be subjected to discrimination due to their membership in a protected group; the perception of membership in a protected group; or association with members of a protected group.

  2. The objective of the AEP is to ensure that all employees and applicants for employment enjoy equality of opportunity in the DOL workplace and to develop and maintain a diverse, equitable, inclusive, and accessible work environment so that employees have an opportunity to reach their fullest potential and maximize their contributions to DOL’s goals.
  3. The objective of establishing procedures for reporting disciplinary action is to provide an effective system for consideration of disciplinary action when a determination is made that a DOL employee engaged in conduct that is inconsistent with Federal antidiscrimination, antiharassment, whistleblower protections laws and/or antiretaliation laws. Additionally, proposing appropriate discipline against an offending individual strengthens accountability after a careful consideration of all the facts and the due process rights of the offending individual are upheld to the greatest extent possible under the law.

104 Authority

This directive is issued pursuant to Secretary’s Order 1-2004, dated April 15, 2004, and civil rights and nondiscrimination statutes, regulations, case law, and Executive Orders related to Federal equal employment opportunity programs. These include, but are not limited to:

  • Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
  • The Equal Pay Act (EPA), 29 U.S.C. § 206(d);
  • The Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5;
  • The Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.;
  • The Americans with Disabilities Act Amendments Act of 2008 (ADAAA), Pub. L. No. 110-135, 122 Stat. 3553;
  • Sections 501 and 508 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq.;
  • Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. § 2000ff et seq.;
  • The Pregnant Workers Fairness Act (PWFA), 42 U.S.C. § 2000gg et seq.;
  • The Civil Service Reform Act of 1978, 5 U.S.C. § 2302;
  • The Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071;
  • The Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act), Pub. L. No. 107-174, 116 Stat. 566, as amended by the Cummings Act;
  • The Whistleblower Protection Act, 5 U.S.C. §2302 9(b)(8)-(9);
  • Executive Order 11478, as amended;
  • Executive Order 11375, as amended;
  • Executive Order 13163;
  • Executive Order 13164;
  • Executive Order 13145;
  • Executive Order 13270;
  • Executive Order 13532;
  • Executive Order 14035;
  • The Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020 (Cummings Act), Pub. L. No. 116-283, Sec. 1131-38, 134 Stat. 3388, 3900-05 (Amending the No FEAR Act of 2002);
  • 29 C.F.R. § 1614;
  • EEOC Management Directive (MD)-110 (Complaint Processing); and
  • EEOC MD-715 (Effective Affirmative Programs).

105 Policy

DOL’s policy is to provide EEO for all current employees, former employees (as it relates to DOL employment), as well as all applicants for DOL employment in accordance with applicable Federal statutes, regulations, case law, Executive Orders, and DOL policies. Additionally, DOL prohibits discrimination based on the aforementioned protected characteristics or motivations or any other basis protected by applicable law or Executive Order.

Furthermore, DOL is committed to fostering and maintaining a workplace that is diverse, equitable, inclusive, and accessible at all organizational levels The policy promotes the full realization of equal employment opportunity through a continuous affirmative program that ensures all employees can compete on a fair and equal basis; strengthens accountability; and maintains a workplace free of from discriminatory, harassing, and retaliatory practices and policies.

Finally, in instances where a DOL employee is found to have violated Federal antidiscrimination, antiharassment, whistleblower protections and/or antiretaliation laws, appropriate disciplinary action will be considered and proposed, in accordance with the Cummings Act and Section 117 below.

106 Equal Employment Opportunity Complaint Program

107 Assignment of Responsibilities

  1. The Assistant Secretary for Administration and Management ("ASAM"), Office of the Assistant Secretary for Administration and Management (OASAM) has the delegated authority and assigned responsibility for the following aspects of DOL’s EEO program, including, but not limited to:
    1. Administering a comprehensive, DOL-wide program to carry out DOL's EEO Policy and fulfilling DOL's obligations arising from EEO statutes, regulations, case law, and Executive Orders covering DOL employees, former employees, and applicants for DOL employment. This may involve fostering cooperation across OASAM agencies, such as Building Operations for physical accessibility; the Office of the Chief Information Officer (OCIO) for technology accessibility; OHR; and others to facilitate the overall goals of EEO and AEP.
    2. The AEP; DEIA; the OASAM WECO that services all agencies except the Bureau of Labor Statistics (BLS), the Office of the Solicitor (SOL), and the Office of Inspector General (OIG); the Anti-Harassment Policy and procedures found at Department of Labor Management Series (DLMS) 6-Chapter 300, DOL Policy & Procedures for Preventing & Eliminating Harassing Conduct in the Workplace | U.S. Department of Labor; and the Reasonable Accommodation process for Employees and Applicants with Disabilities or those with Pregnancy-Related Medical Conditions found at DLMS 6-200, Reasonable Accommodations for Employees and Applicants with Disabilities.
    3. Promoting EEO through OHR instruction to and oversight of management’s adherence to EEO as outlined in the performance management/appraisal process as well as employee recognition/awards program;
    4. Strengthening, encouraging, and promoting the use of the Department’s ADR Program for early resolution of EEO complaints, reducing unnecessary costs associated with litigation, and fostering a more cordial and cooperative work environment; and
    5. Making delegations of authority and assignments of the responsibilities as necessary.
  2. The Director of the Civil Rights Center (CRC), organizationally located within OASAM, has the delegated authority and assigned responsibility for the following aspects of DOL’s EEO program, including, but not limited to:
    1. Upholding the integrity of the EEO complaint program by safeguarding the neutral and impartial processing and resolution of EEO complaints for DOL employees, former employees, and applicants for DOL employment who believe they have been subjected to discriminatory, harassing, and/or retaliatory conduct;
    2. Administering all aspects of the administrative processing of individual and class discrimination complaints filed by employees, former employees, and applicants for DOL employment in accordance with 29 C.F.R. Part 1614 including, but not limited to, providing for EEO counseling, ADR, investigation, and adjudication of such complaints, except, as provided for in subparagraph 107(D) of this Chapter, those that include allegations against CRC, the immediate office of the ASAM and for other complaints determined by the Director of CRC to constitute a potential conflict of interest;
    3. Issuing Final Agency Decisions (FADs) and taking Final Agency Actions (FAAs) on discrimination complaints in a timely manner in accordance with 29 C.F.R. Part 1614, except those decisions on complaints filed by employees, former employees, and applicants for employment arising within the Office of Inspector General (OIG), which will be issued by the Secretary or their delegee(2);
    4. Appointing EEO counselors, factfinders, and mediators or other individuals to engage in ADR;
    5. Strengthening, encouraging, and promoting the use of the Department’s ADR Program for early resolution of EEO complaints, reducing unnecessary costs associated with litigation, and fostering a more cordial and cooperative work environment;
    6. Preparing and/or coordinating such EEO-related reports as may be required by the EEOC or related entities;
    7. Advising the Secretary of Labor, through the ASAM, about the status of equal employment opportunity at DOL;
    8. Recommending changes to programs and procedures designed to eliminate practices that act as barriers to the hiring, retention, and advancement based on gender, race and national origin, and disability status, with the goal of improving DOL's overall EEO Program;
    9. Advising agencies about physical, program, and technology accessibility issues that affect DOL employees and applicants with disabilities;
    10. Evaluating the sufficiency of the total Agency program for EEO and reporting to the Head of the Agency with recommendations as to any improvements or corrections needed, including remedial and disciplinary action with respect to managerial, supervisory, or other employees whose actions have been inconsistent with EEO principles;
    11. Developing and disseminating policies, procedures, guidance and training on the EEO program and related interests such as the Anti-Harassment Policy and procedures found in the Department of Labor Management Series (DLMS) 6-Chapter 300, DOL Policy & Procedures for Preventing & Eliminating Harassing Conduct in the Workplace | U.S. Department of Labor; and the Reasonable Accommodation process for Employees and Applicants with Disabilities or those with Pregnancy-Related Medical Conditions found at DLMS 6-200, Reasonable Accommodations for Employees and Applicants with Disabilities.
    12. Reviewing appeal recommendations by a DOL agency and counsel representing the Agency at hearings before the EEOC and deciding, with the concurrence of SOL’s Civil Rights and Labor Management (CRLM) Division, whether to appeal adverse decisions issued by EEOC AJs and/or whether to file requests for reconsideration in adverse decisions issued by the EEOC’s Office of Federal Operations (OFO);
    13. Coordinating and disseminating a comprehensive training program to DOL employees on their rights, responsibilities, and obligations under applicable EEO statutes, regulations, case law, Executive Orders, DOL policies, and guidance, including, for example, those required by the No FEAR Act;
    14. Ensuring the fair, effective, and equitable processing of EEO complaints and upholding the integrity and neutrality of the EEO complaint program;
    15. Appointing investigators and other individuals to fulfill requirements of the EEO complaint process, including through management of a contract(s) with outside vendor(s) to accomplish this work;
    16. Maintaining strict confidentiality of information in accordance with applicable EEO laws, policies, and guidance;
    17. Developing and maintaining an electronic complaint tracking system for all EEO complaints in accordance with applicable laws, policies, and guidance; and
    18. Making delegations of authority and assignments of the responsibilities as necessary.
  3. The Solicitor of Labor has the delegated authority and assigned responsibility for the following aspects of DOL’s EEO program, including, but not limited to:
    1. Providing counsel to the Secretary, the ASAM, the Director of CRC, and Agency Heads in implementing DOL’s EEO program;
    2. Providing legal representation for DOL at hearings and court proceedings arising out of the EEO program;
    3. Providing legal advice to managers, supervisors, and other employees who are assisting management in personnel matters during their official duties and who, in their official capacity, request a review of their EEO affidavits prior to submission to an EEO investigator for inclusion in the ROI;
    4. Encouraging and promoting the use of the Department’s ADR Program for early resolution of EEO complaints, reducing unnecessary costs associated with litigation, and fostering a more cordial and cooperative work environment;
    5. Providing advice and counsel to CRC regarding appeal recommendations in EEO complaints;
    6. Maintaining strict confidentiality of information in accordance with applicable laws, policies, and guidance; and
    7. Making delegations of authority and assignments of the responsibilities as necessary.
  4. The Chair of the Administrative Review Board (ARB) has the delegated authority and assigned responsibility for the following aspects of DOL's EEO program(3):
    1. Providing for all aspects of the administrative processing of EEO complaints including the assignment of counselors, investigators, and the issuance of FADs and FAAs in complaints involving allegations of discrimination against CRC, the immediate office of the ASAM, and for those complaints determined by the Director of CRC to constitute a potential conflict of interest; and
    2. Making further delegations of the authority and assignment of responsibilities, as necessary.
  5. DOL Agency Heads have the delegated authority and assigned responsibility for leadership in the implementation of DOL's EEO program and policies within their agency pursuant to direction or guidance from the ASAM, the Director of CRC, the agency WECO, or officials delegated for those purposes or the Solicitor or OIG Counsel, as appropriate. Such responsibilities include, but are not limited to, the following:
    1. Assuring full and prompt cooperation on the part of agency employees and officials with DOL’s EEO policies, procedures, and direction from officials charged with implementing DOL’s EEO program;
    2. Providing sufficient agency funds and other resources to ensure effective implementation of DOL’s EEO policies and procedures including training of employees on EEO matters, and expenditures related to reasonable accommodation, as necessary;
    3. Encouraging and promoting the use of the Department’s ADR Program for early resolution of EEO complaints, reducing unnecessary costs associated with litigation, and fostering a more cordial and cooperative work environment;
    4. Ensuring that the agency engages in good faith efforts to resolve complaints;
    5. Conducting follow-up and monitoring compliance with the agency WECOs regarding CRC or EEOC orders in which a finding of discrimination or retaliation is made, or settlement agreements resolving EEO complaints, and ensuring the responsible agency officials appropriately and timely implement the provisions of CRC or EEOC orders or settlement agreements;
    6. Providing facilities for, and bearing costs related to, discrimination complaints filed against the agency including, but not limited to, any necessary agency EEO counselor training and travel, litigation costs, settlement costs, and relief for findings of discrimination against the agency (including compensatory damages and legitimate attorney fees);
    7. Ensuring that EEO-related performance management/appraisal elements reflect adherence to DOL’s EEO commitments as well as promoting employee recognition/awards for noteworthy EEO-related efforts;
    8. Ensuring that appropriate disciplinary action is taken against employees who engage in discriminatory practices, in accordance with all applicable laws and guidance; and
    9. Making delegations of the authority and assignment of responsibilities as necessary.
  6. The Office of the Chief Financial Officer (OCFO) has the delegated authority and assigned responsibility for the following aspects of DOL’s EEO program:
    1. Processing the payment of monetary relief and/or terms for monetary compensation in settlement agreements resulting from EEO complaints; and
    2. Making delegations of the authority and assignment of responsibilities as necessary.
  7. CRC’s EEO Counseling Coordinator, or the official acting in that capacity, is assigned responsibility for:
    1. Assisting in developing, disseminating, and monitoring the implementation of DOL-wide policies and procedures to administer the informal EEO complaint (pre-complaint) counseling program including selecting, training, assigning, and evaluating performance of EEO counselors;
    2. Providing technical assistance on the informal EEO complaint (pre-complaint) process to DOL officials, and to DOL employees, former employees, and applicants for DOL employment;
    3. Apprising the relevant agency WECO Manager of informal EEO complaint activity in which allegations of harassing conduct have been raised in accordance with the Department’s Harassing Conduct Policy;
    4. Assigning DOL EEO counselors to counsel DOL Informal EEO Complaints or referring conflict complaints to the Chair of the ARB and/or an external contractor for counseling and/or ADR processing;
    5. Ensuring all counseling activities are documented and included in the EEO Counselor’s Summary Report (CSR) and submitted for inclusion as part of the complaint record;
    6. Updating and otherwise maintaining an effective electronic complaint tracking system for all informal EEO complaints of discrimination;
    7. Providing employees, former employees, and applicants for DOL employment information on and ensuring effective processing of DOL’s ADR Program for early resolution of EEO complaints, reducing unnecessary costs associated with litigation, and fostering a more cordial and cooperative work environment; and
    8. Providing initial and refresher training to DOL EEO counselors.
  8. DOL EEO Counselors are assigned responsibility for:
    1. As assigned, providing informal EEO complaint (pre-complaint) counseling to aggrieved DOL employees, former employees, or applicants for DOL employment who believe that they have experienced discrimination, been subjected to harassment, and/or faced retaliation for engaging in protected EEO activity by DOL pursuant to policies, procedures, and guidance provided by CRC;
    2. As assigned, conducting appropriate fact-finding of the allegations by interviewing the aggrieved individual, any responsible management official(s), and relevant witness(es) to the allegation(s);
    3. For assigned cases, gathering preliminary documentation, such as merit staffing files, performance appraisals, written reprimands, or adverse personnel actions, etc., to aid in CRC’s informal resolution attempts, and to provide sufficient background information if resolution is not achieved and a formal EEO complaint of discrimination is filed;
    4. Encouraging and promoting the early resolution of complaints through the Department’s ADR Program, reducing unnecessary costs associated with litigation, and fostering a more cordial and cooperative work environment;
    5. For traditional counseling cases, facilitating communication between the aggrieved party and DOL officials to resolve issues during the informal counseling period;
    6. For traditional counseling cases, securing a written agreement, signed by all relevant parties, when an informal resolution is reached;
    7. Preparing and sending a timely, complete, written Counselor’s Summary Report (CSR) of informal EEO pre-complaint counseling activities to be included in the complaint record;
    8. Maintaining strict confidentiality of information in accordance with applicable laws, policies, and guidance, including maintaining the anonymity of an aggrieved party if they so request during the informal EEO complaint (pre-complaint) period; and
    9. Providing information to DOL officials, DOL employees, former employees, and applicants for DOL employment regarding the informal EEO complaint (pre-complaint) and formal EEO complaint processes.
  9. Agency Workplace Equality Compliance Office (WECO) Managers or officials acting in that capacity are assigned responsibility for the following aspects of DOL’s EEO program, including, but not limited to:
    1. Providing advice and guidance to Agency officials to assist them in carrying out their responsibilities under the EEO complaint program, the Department’s Harassing Conduct Policy, and the Department’s Reasonable Accommodation program for employees, former employees, and applicants with disabilities or those with pregnancy-related medical conditions;
    2. Encouraging and promoting early resolution of complaints through the Department’s ADR Program, reducing unnecessary costs associated with litigation, and fostering a more cordial and cooperative work environment;
    3. Working with CRC, as appropriate, to provide information and technical assistance to employees, such as training on and compliance with the EEO complaint process;
    4. Assisting and assuring that agency employees cooperate with EEO counselors, investigators, CRC staff, and SOL attorneys;
    5. Assisting EEO counselors, investigators, and SOL attorneys to obtain access to agency employees/information and/or documentary evidence;
    6. Monitoring agency EEO complaint activity including receiving and reviewing reports of EEO investigations to identify opportunities for resolution and to recommend settlement when appropriate;
    7. Negotiating or facilitating negotiation for the resolution of EEO complaints;
    8. Conducting follow-up and monitoring compliance with CRC or EEOC orders in which a finding of discrimination or retaliation is made, or settlement agreements resolving EEO complaints, and ensuring the responsible agency officials appropriately and timely implement the provisions of CRC or EEOC orders or settlement agreements;
    9. Working with Agency officials, OHR, CRC, and SOL to ensure that discipline is considered for DOL employees who have been found to have engaged in discriminatory conduct;
    10. Maintaining strict confidentiality of information in accordance with applicable laws, policies, and guidance, including maintaining the anonymity of an aggrieved individual if they so request; and
    11. Contributing to the preparation of internal and external EEO-related reports, including the MD 715 (establishing and maintaining effective affirmative programs of equal employment opportunity).
  10. All DOL Managers and Supervisors have responsibility for:
    1. Assuring that day-to-day policies, practices, and procedures are free from discrimination, discriminatory harassment, and retaliatory conduct, and addressing other practices or behaviors that may give rise to complaints of discrimination by DOL employees, former employees, or applicants for DOL employment;
    2. Encouraging and promoting the use of the Department’s ADR Program for early resolution of EEO complaints, reducing unnecessary costs associated with litigation, and fostering a more cordial and cooperative work environment;
    3. Cooperating fully and promptly with EEO counselors, investigators, CRC officials, SOL, and the agency WECO, and not obstructing or delaying the EEO complaint process, such as an EEO investigation, or otherwise engaging in misconduct during the EEO complaint process;
    4. Ensuring appropriate handling and reporting of allegations of harassing conduct pursuant to Department of Labor Management Series (DLMS) 6-Chapter 300, DOL Policy & Procedures for Preventing & Eliminating Harassing Conduct in the Workplace;
    5. Ensuring appropriate handling and timely response to, as well as facilitating employees’ requests for a reasonable accommodation for a disability, pregnancy-related medical condition, or a sincerely held religious belief, observance, or practice;
    6. Providing clear, thorough, and forthcoming responses to fact-finding and investigatory efforts by CRC or SOL, and ensuring that a robust record is developed so that a factfinder can make merit-based decisions on the allegations;
    7. Participating and cooperating fully in all aspects of the EEO complaint process, where applicable, including during counseling, ADR, investigations, hearings, and other litigation efforts related to EEO complaints;
    8. Maintaining strict confidentiality of information in accordance with applicable laws, policies, and guidance; and
    9. Assuring that supervised employees are allotted a reasonable amount of official time to present their EEO complaints and participate, as required, in the EEO complaint process.
  11. DOL employees have responsibility for:
    1. Adhering to EEO requirements and promoting the principles of DEIA in the performance of their positions;
    2. Cooperating fully and promptly with EEO counselors including by providing statements regarding any firsthand knowledge or documentation related to issues raised by an aggrieved employee, former employee, or applicant for DOL employment during pre-complaint counseling;
    3. Cooperating and acting in good faith during early resolution attempts of complaints through the Department’s ADR Program;
    4. Cooperating fully and promptly with all officials authorized to investigate or otherwise adjudicate a formal complaint of discrimination, including by providing sworn or affirmed statements regarding any firsthand knowledge and documentation related to issues accepted for investigation; and
    5. Maintaining strict confidentiality of information and only sharing in accordance with applicable laws, policies, and guidance related to confidential information.

108 Agency, Manager, Supervisor, and Employee Rights

DOL employees have the following rights connected with the EEO complaint program:

  1. Representation. Any employee participating in the complaint process, whether as a complainant, responsible management official, or witness, has the right to be represented and to be accompanied, advised, and assisted by a person(s) of their choice, and at their expense, if it does not present a conflict of interest or position. (29 C.F.R. § 1614.605)

  2. Official EEO Time. Any DOL employee, or DOL complainant’s representative employed by DOL, shall have a reasonable amount of official EEO time, if otherwise in duty status, to prepare an EEO complaint and to respond to DOL and EEOC requests for information. The Agency is not obligated to change work schedules, incur overtime wages, or pay travel expenses to facilitate the choice of a specific representative or to allow the complainant and representative to confer.

    Requests for use of official EEO time must be made in advance to the employee's immediate supervisor and specify the amount of time to be used, the proposed schedule for use, and the reason for the request.

    The EEOC has defined “reasonable” as whatever is appropriate, under the circumstances of the complaint, in order to allow a complete presentation of the relevant information associated with the complaint. The actual number of hours to which complainants and their representatives are entitled will vary depending on the complexity of the complaint and the mission of DOL and DOLs need to have employees available to perform their normal duties on a regular basis. The complainant and their supervisor should arrive at a mutual understanding as to the amount of official EEO time to be used prior to the complainant's use of such time.

    Disputes concerning use of official EEO time connected with EEO complaints should be raised initially with the relevant Agency’s WECO Manager who may consult with CRC to confirm the nature, extent, and current stage of the underlying EEO complaint to determine the reasonableness of the request and to resolve disagreements between the supervisor and employee. If a request for official EEO time is ultimately denied, the supervisor should provide an explanation for this denial to CRC for inclusion in the record. (29 C.F.R. § 1614.605). A denial of official EEO time does not raise an independent claim of discrimination and/or retaliation; however, the EEOC has determined that an employee may seek review and relief for improper denial of a request for official EEO time, notwithstanding an ultimate determination of a non-finding of discrimination and/or retaliation in the complaint.

    The complainant and representative, if employed by the Agency and otherwise in a pay status, shall be on official EEO time, regardless of their tour of duty, when their presence is authorized or required by the Agency or the EEOC during the investigation, informal resolution, or hearing on the complaint.

  3. Freedom from Retaliation. Anyone participating as a complainant, witness, or representative is protected from retaliation, coercion, interference, restraint, discrimination or reprisal stemming from their participation in the EEO complaint process. If an individual is subjected to retaliatory conduct stemming from their participation in the EEO complaint process, they may file an EEO complaint or request to amend their existing EEO complaint with CRC to include the retaliatory conduct.

  4. Anonymity and Confidentiality. During informal EEO complaint (pre-complaint) counseling, an EEO counselor may not disclose the complainant's identity unless specifically authorized to do so by the complainant.

    Once a formal EEO complaint is filed, the identity of the aggrieved person does not remain confidential. The complaint file, or parts of it, may be shared with those who are involved and need access. This includes WECO officials, DOL representatives, and other DOL officials who have a need-to-know the allegations, certain evidence, and/or broader content of the files for the purpose of addressing the allegations raised.

  5. Right of Review. Any person providing an affidavit during an investigation has the right to review their statement prior to signing it and may make initialed corrections if it is inaccurate or incomplete. Any person providing an affidavit also has the right to receive a copy of such affidavit.
  6. Management Right of Review. SOL may provide legal advice to any manager, supervisor, and other employee who is assisting management in personnel matters during their official duties and who, in their official capacity, requests a review of their EEO affidavit prior to submitting it to an EEO investigator for inclusion in the ROI. Any such employee of the Office of Inspector General (OIG) may seek such review from OIG counsel. SOL or OIG counsel, however, do not serve as a personal representative of the manager, supervisor or other employee.

  7. Civil Action. After filing a formal complaint, the complainant has the right to file a civil action in an appropriate U.S. District Court at any one of five points in the complaint process. They are:

    1. Within 90 calendar days of receiving DOL’s final action/decision on the complaint if an appeal has not been filed with the EEOC;
    2. Within 90 calendar days of receiving the EEOC’s final decision on an appeal;
    3. At any time after 180 calendar days have elapsed since the date the complaint was filed if an appeal has not been filed, and if DOL has not issued a final action/decision;
    4. At any time after 180 calendar days have elapsed since the date an EEOC appeal was filed, if the EEOC has not issued a decision;
    5. Regarding complaints filed pursuant to the Age Discrimination in Employment Act (ADEA) only, as an alternative to filing a complaint in the administrative process, a complainant may file a civil action in U.S. District Court after giving the EEOC not less than 30 calendar days’ notice of the intent to file such action. (29 C.F.R. § 1614.201(a)).

    Note that an aggrieved individual does not have to file an administrative complaint before filing a civil action under the Equal Pay Act (EPA). The EPA includes a statute of limitations, which requires the filing of a civil action within two years or, if the violation is willful, three years of the date of the alleged violation regardless of whether an administrative complaint has been filed. (29 C.F.R. § 1614.408).

    Once a civil action is filed in an appropriate U.S. District Court, the administrative EEO process immediately ends and the EEOC and CRC are no longer permitted to take further action on the underlying complaint.

  8. Negotiated Grievance Procedures. Any employee within the American Federation of Government Employees (AFGE), Local 12, or the National Union of Labor Investigators (NULI) bargaining units may file allegations of discrimination under the negotiated grievance procedures of their respective union. Employees within the Local 12 or NULI bargaining units must choose whether the allegations of discrimination will be processed under the negotiated grievance procedure or under the EEO complaint procedure with CRC. (See, Article 23 Section 8 of the DOL and Local 12 Collective Bargaining Agreement, July 20, 2020(4); Article 34 Section 4(c) of the DOL and NULI Agreement effective October 1, 2011 – September 30, 2016).(5) An election of forum will be determined by whichever event comes first, the date the negotiated grievance is filed or the date the formal EEO complaint is filed. Contacting an EEO counselor or filing an informal EEO complaint (pre-complaint) with CRC is not an election of forum unless/until a formal EEO complaint is subsequently filed prior to the filing of a negotiated grievance.

    Employees represented by the National Council of Field Labor Locals (NCFLL) are specifically excluded from filing grievances alleging discrimination. In the event an employee represented by the NCFLL files a grievance and an informal (pre-complaint) EEO complaint on the same matter, the grievance will be held in abeyance. If a formal EEO complaint is filed, the grievance will be terminated. However, if CRC dismisses that EEO complaint for reasons other than on merit, the NCFLL represented employee has 30 calendar days from receipt of the dismissal to resurrect the grievance. (See, Article 15 Section 2 (B) & (C) of the DOL and NCFLL Collective Bargaining Agreement, October 1, 2012.)(6)

  9. Merit Systems Protection Board (MSPB) Appeal. In lieu of filing an EEO complaint, an employee may file allegations of discrimination related to an action appealable to the MSPB (including removal beyond the probationary period of employment, constructive discharge, reduction in grade or pay, or suspension for more than 14 days) directly with the MSPB under the so-called "mixed case" appeal procedures described in Section 114 (E) of this Chapter and 29 C.F.R. § 1614.302.

    A complainant may elect to file an MSPB appeal, if applicable, or may pursue a formal complaint of discrimination with CRC, but not both. Whatever action is filed first (MSPB appeal or formal EEO complaint) is considered an election to proceed in that forum. Contacting an EEO counselor or CRC to initiate the informal EEO complaint (pre-complaint) is not considered an election to proceed in the EEO forum. Filing a formal EEO complaint constitutes an election to proceed in the EEO forum. 29 C.F.R. § 1614.302(b).

  10. Notice to the Union. EEO Investigators are required to give notice to Local 12, NCFLL, or NULI prior to conducting formal discussions with any bargaining unit employee in connection with a formal EEO complaint. Said notice is to afford the union an opportunity to be represented at the formal discussions. (5 U.S.C. 7114(a)(2)(A)).
  11. Voluntary Resolution of Complaint. A complainant may seek to voluntarily resolve their complaint at any time during the administrative process, including the hearing/litigation stage. Any resolution reached shall be in writing, signed by both parties and identify the claims resolved. (29 C.F.R. § 1614.603).

109 EEO Complaint Process

  1. Initiating the Process. Aggrieved individuals who believe they have been discriminated against on the basis of the aforementioned protected characteristics or motivations listed in Section 103 must consult an EEO counselor prior to filing a formal complaint in order to try to informally resolve the matter.

110 Informal EEO Complaint (Pre-complaint) Counseling/ADR

  1. Timeframe for Contacting an EEO Counselor or a CRC Official. Any DOL employee, former employee, or applicant for DOL employment who believes that they have been subjected to discrimination, discriminatory harassment, and/or retaliation must contact a DOL EEO counselor or a CRC official within 45 calendar days of the date of the alleged discriminatory incident or the effective date of a personnel action. The names of EEO counselors appear on DOL LaborNet, and on posters on bulletin boards in DOL buildings across the country, or an employee, former employee or applicant may contact CRC. A list of current EEO counselors may be found using this link: DOL EEO Counselors

  2. EEO Counselor's Role. The EEO counselor must inform the aggrieved person of their rights and responsibilities in the EEO complaint process, including the option to elect ADR.

    The counselor conducts a limited inquiry to define the allegation(s) and obtain information to be utilized when assessing jurisdiction at the formal stage and attempts to facilitate resolution and/or settlement. While the scope of the inquiry will vary based on the complexity of the claims, the inquiry is limited and not intended to substitute for the fact finding required in the formal stage. The counselor determines the scope of the inquiry based on the allegation(s) raised by the aggrieved individual. The counselor shall not determine whether discrimination occurred or suggest any other decision concerning the allegations raised.

    The counselor maintains a record of counseling to provide the required EEO CSR to CRC upon completion of counseling.

  3. Timeframe for Completion of Counseling. The EEO counselor has 30 calendar days from the date the aggrieved person contacted an EEO counselor or CRC to request counseling in which to counsel the complainant and attempt to informally resolve the matter. Unless the timeframe for conducting counseling is extended (see Subsection E of this Chapter), the counselor will, by the 30th calendar day, issue the complainant a written notice of right to file a formal complaint (NRTF) and the procedures for filing the complaint, which the complainant must do within 15 calendar days. If counseling is completed in less than 30 calendar days or if counseling is extended by mutual agreement beyond 30 calendar days, the counselor will issue the NRTF at the final interview.
  4. Resolution. If counseling resolves the complaint, the counselor shall obtain a signed resolution agreement from the relevant parties.
  5. Additional Time. The complainant may agree to extend the timeframe to attempt to informally resolve their complaint for no more than an additional 60 calendar days. The total time for pre-complaint counseling may not exceed 90 calendar days. At the 90th day of counseling, the assigned counselor will issue the NRTF ending the pre-complaint period. If the complainant intends to continue to pursue their complaint, they must file a formal complaint within 15 calendar days of receiving the NRTF. Information on how to file a formal complaint will be contained in the NRTF.
  6. ADR – Mediation or Facilitation 
    1. It is DOL’s policy to offer individuals (current employees, former employees, and applicants for DOL employment alleging discrimination) an opportunity to request ADR to attempt to resolve disputes raised in informal and/or formal EEO complaints of discrimination.
    2. ADR is generally a no cost, fair, and confidential program that can resolve complaints in a manner that fosters cooperation and a problem-solving approach to resolving workplace disputes and reduces or avoids lengthy litigation.
    3. The average EEO complaint can take anywhere from 6 months to several years before a final decision is rendered, and can consume extensive resources for all parties involved, including the complainant, Responding Management Officials (RMOs), witnesses, CRC staff, WECOs, and SOL. All parties are strongly encouraged to participate in good faith and with open minds to reach a voluntary and mutually beneficial resolution through mediation or facilitation.
    4. Parties will be encouraged to consider ways in which to resolve the allegations, which may or may not make the complainant whole and/or require an Agency to rescind actions. ADR may prompt consideration of steps in the future that may promote a more conducive work culture for all parties;
    5. A complainant may request ADR at any time during the informal and formal EEO complaint stages of the complaint process, prior to a request for a hearing with an EEOC AJ.
    6. DOL has chosen facilitation and/or mediation as its primary ADR method in resolving EEO disputes because it empowers the parties themselves to reach an acceptable resolution of the conflict.
    7. CRC may determine, at its discretion and on a case-by-case basis, that a complaint is not appropriate for ADR. If an EEO complaint is not appropriate for ADR, the Director of CRC (or the Director’s designee) will provide written notification to the aggrieved person that DOL will not conduct ADR. It is the policy of CRC to encourage ADR in all cases with limited exceptions; however, successful resolution requires that all participants mutually agree to the terms of the agreement. If CRC determines that a complaint is not appropriate for ADR, the EEO complaint will continue to be processed in accordance with all regulatory timeframes. Requesting ADR does not stop or toll the time limitations required in the EEO complaint process. Such a determination does not suggest that the complaint may not be determined to be meritorious after investigation and adjudication.
    8. Once CRC determines that the complaint is appropriate for ADR, the proper DOL Official will participate in the ADR mediation or facilitation, including the Agency WECO and/or SOL or OIG, if the complaint arises out of the OIG. Such a determination does not suggest that the complaint may be determined to be meritorious after investigation and adjudication.
    9. All parties will be encouraged to consider options for resolving the complaint to mitigate disruption in the workplace and avoid prolonged litigation. As a confidential process, possible terms of resolution and/or reasons for resolution will not be recorded within ROIs or considered as evidence of discrimination during the adjudication phase of complaints.
    10. When the aggrieved person participates in ADR, the pre-complaint processing period shall be up to 90 calendar days. If the claim has not been resolved before the 90th day, the Notice of Right to File (NRTF) a formal complaint must be issued by a CRC official.

111 Formal Complaint

  1. Filing Timeframe and Procedure. If the matter remains unresolved after completion of the informal EEO complaint, the aggrieved individual/complainant may file a formal complaint within 15 calendar days of receiving the NRTF. The complaint must contain a signed statement from the aggrieved individual or that person’s representative and must be filed within 15 calendar days of receipt of the NRTF a formal complaint. Electronic signature is sufficient for purposes of a signed statement. Failure to file a formal complaint within 15 calendar days of receiving the NRTF may result in dismissal of the complaint, unless certain extenuating circumstances apply. The complaint may be filed by mail, email, facsimile, or in person with the Director of CRC or with the Secretary of Labor.(7) The formal complaint will be deemed timely filed if it is received or postmarked before the expiration of the applicable filing period.
  2. Contents. The complaint must include the following:
    1. The complainant's name, mailing address, email address, phone number and place of employment;
    2. The basis of the complainant's allegations of discrimination, harassment, or retaliation - in other words - protected characteristics or motivations previously listed in Section 103;
    3. A concise statement outlining the specific nature of the matter giving rise to the complaint (for example, termination, demotion, reprimand, non-selection, denial of promotion, harassment, etc.); a description of any resulting harm; and the date(s) of occurrence, which shall include other identifying specifics (what, when, who, where, why and how) and any information believed to support the allegations;
    4. The name, address, email address and telephone number of the complainant’s representative, if one has been designated;
    5. Remedies sought; and
    6. Whether the complainant has filed a charge on the same or related matter in any other forum, including the MSPB, pursuant to a negotiated grievance procedure, a U.S. District Court, etc.
  3. Representation. After the complainant has designated a representative, all official correspondence will be sent to the representative with a copy to the complainant unless the complainant states otherwise. When the complainant designates an attorney as representative, service of all official correspondence shall be made on the attorney and the complainant, but timeframes for receipt of materials shall be computed from the time of receipt by the attorney. This does not apply to non-attorney representatives. The complainant must serve all official correspondence on the designated representative of the Agency, which may be CRC or attorneys from SOL. The complainant shall always be responsible for proceeding with the complaint regardless of whether they have designated a representative.
  4. Acceptance or Dismissal. CRC will review the complaint to determine whether it meets the criteria for acceptance for an investigation set forth in 29 C.F.R. § 1614.107. If additional information is required to determine whether the complaint will be accepted for investigation, the complainant may be asked to clarify aspects of their complaint. A written decision will be issued as to whether the complaint is accepted for investigation or dismissed from further processing in accordance with 29 C.F.R. § 1614.107. If CRC determines that some, but not all, of the claims in a complaint will be dismissed, CRC will notify the complainant in writing of this determination, the rationale for the determination, and explain that those claims will not be investigated with the accepted claim. A copy of the partial dismissal will be placed in the investigative report. A partial dismissal may be reviewed by the EEOC at hearing before an AJ, or on appeal to the EEOC’s OFO following the issuance of a FAD or FAA. If the complaint is dismissed entirely, the written decision will inform the complainant of their right to appeal to the EEOC’s OFO or file in U.S. District Court. (29 C.F.R. § 1614.107).
  5. Amending a Complaint. A complainant may amend a complaint at any time prior to the conclusion of the investigation to include new issues or claims that are like or related to those raised in the complaint. Amendments are likely to be accepted if they have grown out of the original charge or the investigation into the original charge. When a complaint has been amended, CRC shall complete the investigation within the earlier of 180 calendar days after the last amendment or 360 calendar days after the filing of the original complaint, except that a complainant may request a hearing from the EEOC at any time after 180 calendar days from the date of the first filed complaint. If a complainant seeks to amend a complaint on or near the 360th day after the formal EEO complaint was filed, CRC may deny that request to amend and initiate processing of a new informal EEO complaint.
  6. Investigations. If CRC accepts a formal EEO complaint for investigation in whole or in part, a qualified investigator will be assigned to conduct an impartial and appropriate investigation of the alleged discrimination. An investigator (a DOL employee or a contract investigator) will be authorized to conduct the investigation and may administer oaths to obtain sworn or affirmed testimony without a pledge of confidentiality from any witness deemed relevant. The investigator compiles a ROI containing sufficient relevant testimony and other evidence to render a decision on the merits of the complainant’s allegations. An investigation shall be completed within 180 calendar days of the date of filing of an individual complaint but not more than 360 calendar days after the filing of the original complaint when a complaint has been amended, and/or by mutual agreement to extend the investigatory deadline. (29 C.F.R. § 1614.108)
  7. Extension of Time to Complete an Investigation. By written mutual agreement, the complainant and CRC may voluntarily extend the time period for completing the investigation for not more than an additional 90 calendar days pursuant to 29 C.F.R. § 1614.108. At no time shall an investigation be completed beyond 360 calendar days after the filing of the original complaint, except as otherwise provided under Section 111 (H).
  8. Equitable Tolling of Regulatory Timeframes. Notwithstanding the regulatory timeframes identified above, all time periods are subject to waiver, estoppel, and equitable tolling. 29 C.F.R. § 1614.604(c). Individuals who are represented by counsel during the relevant time frame may have difficulty establishing a right to tolling. When equitable tolling is warranted, the limitations period does not automatically begin anew. Instead, the extension is for a "reasonable" period.
  9. Report of Investigation (ROI). When the investigation is complete, CRC sends the ROI to the complainant (and their representative, if one has been designated), who will be notified that, within 30 calendar days of receipt of the ROI, the complainant has the right to elect either a FAD on the record, or to request a hearing and decision from an EEOC AJ. (See exceptions in Sections 108(I) and 114 (E) on processing mixed case complaints and appeals to the MSPB). The ROI is also sent to the WECO Manager of the DOL Agency against which the complaint was filed.

  10. FAD and Right of Appeal When No Hearing is Requested. If the complainant elects to receive a FAD, the CRC Director, ARB Chairperson, or their designee(s), as appropriate, will issue the written FAD on the merits of the complaint. (Decisions on complaints filed by employees, former employees, and applicants for employment arising from within OIG will be issued by the Secretary of Labor, or their designee). If the complainant does not, within 30 calendar days, make an election between a request for a hearing before an EEOC AJ or a FAD, a FAD will be issued pursuant to 29 C.F.R. § 1614.110(b).

    The decision will include a notice that advises the complainant of their right to appeal the decision to the EEOC’s OFO or file a civil action in an appropriate U.S. District Court, together with the timeframes and procedures for doing so.

    Discrimination based on status as a parent is prescribed by Executive Order 11478, as amended by Executive Order 13152, not by Federal statute. Therefore, a complainant who has alleged discrimination based on parental status cannot request a hearing before an EEOC AJ or appeal a FAD to the EEOC. Consequently, the CRC Director, as appropriate, will issue a FAD concerning claims of discrimination based on status as a parent. If a hearing is requested on other claims and bases that are protected by Federal statute (e.g., race, color, sex, national origin, religion, age, etc.), then a decision on status as a parent will be made following a decision from the EEOC AJ. CRC shall review any such allegations to determine appropriate processing, which will include an assessment of whether such a claim may also involve sex stereotyping or other allegations that may also implicate other protected classes.

  11. Prompt Processing. Both the complainant and DOL must process the complaint without undue delay or contumacious conduct. If the complainant fails to prosecute their complaint, that complaint may be dismissed or adjudicated without the complainant’s cooperation if sufficient information is available upon which to render a decision on the merits of the allegations. If a ROI has not been issued and 180 calendar days have passed since the complaint was filed, the complainant may request a hearing from the EEOC or file a civil action in an appropriate U.S. District Court.
  12. Additional Time Granted by the Director. The CRC Director, as appropriate, may waive or extend the time limit for filing a complaint only if the complainant demonstrates that they were neither notified of the time limits nor otherwise aware of them or that circumstances beyond their control prevented timely filing. The CRC Director, as appropriate, may extend the time limit for responding to requests for information during EEO processing (up until the complainant seeks a hearing, or files an appeal with the EEOC) upon a showing of good cause.

112 EEOC Hearing

  1. Request for a Hearing before an EEOC Administrative Judge (AJ). If a complainant elects to request a hearing before an EEOC AJ, the request for a hearing must be made to the appropriate EEOC office at any time after 180 calendar days of filing the complaint if the ROI has not been completed, or within 30 calendar days of receipt of the ROI and notice of election rights pursuant to 29 C.F.R. § 1614.108(f). A copy of this hearing request must also be sent to CRC. Failure to notify CRC of the hearing request may result in a complainant forfeiting the right to request a hearing and instead receiving a written FAD. Upon receipt of the complainant’s hearing request, or pursuant to an order from the EEOC to produce the record, the ROI will be sent by DOL to the EEOC. SOL or OIG, if applicable, will be notified that the complainant has requested a hearing and will be provided a copy of the ROI upon transmittal to the EEOC Hearings Unit.
  2. Appointment and Responsibilities of an AJ. When a complainant requests a hearing, the EEOC appoints an AJ to conduct a hearing in accordance with 29 C.F.R. § 1614.109. The EEOC AJ assumes full responsibility for the adjudication of the complaint, including overseeing further development of the record, if necessary.
  3. The AJ’s Findings of Fact and Law. After further development, if necessary, and an assessment of all relevant evidence, the EEOC AJ will transmit the following to DOL:
    1. The complaint record, including the record of hearing;
    2. A written analysis of the evidence and findings based on the evidence; and
    3. A written decision on the complaint, including any remedial action to be taken.
  4. DOL’s Final Agency Action. Within 40 calendar days of receipt of the AJ’s decision and record, the CRC Director, ARB Chairperson, or the Secretary, or their designee, as appropriate, will issue a Final Agency Action (FAA) pursuant to 29 C.F.R. § 1614.110(a). This FAA must indicate whether DOL adopts the AJ's findings in part or in whole. If the AJ's findings are not adopted in whole, the CRC Director, ARB Chairperson, or the Secretary, or their designee, as appropriate, will file a concurrent notice of appeal on behalf of DOL with EEOC’s OFO. The FAA will also advise the complainant of the right to appeal the decision to the EEOC or file an action in an appropriate U.S. District Court, together with the timeframes and procedures for doing so. The assigned SOL or OIG office will receive a copy, as well as the DOL agency’s WECO.

113 Process after the FAD or FAA

  1. Implementing Corrective Action. If DOL's FAD or FAA, or a decision from the EEOC’s OFO, requires that remedial action be taken, the DOL Agency Head, in coordination with the Agency’s WECO and/or SOL, as appropriate:
    1. Notify the official(s) responsible for implementing the action required;
    2. Follow up to ensure full implementation to the extent possible by; and
    3. Provide confirmation of full implementation to the CRC Director, including copies of any appropriate corroborating documents.
  2. Appeal of the FAD. If the complainant appeals DOL's FAD/FAA, the EEOC will request a written statement of position and a copy of the complaint file from DOL. The complainant may also submit a statement in support of the appeal to the EEOC, if they wish to do so. The complainant must provide CRC with a copy of any statement submitted to support the appeal within 30 calendar days of filing the notice of appeal. The statement may also be submitted with the notice of appeal. The EEOC will review the entire complaint record and issue a final decision. Either the complainant or CRC may request reconsideration of the EEOC’s decision within 30 calendar days of receipt of the EEOC’s decision. A request for reconsideration is not the same as a second appeal. The EEOC will only grant reconsideration upon a showing of a clearly erroneous interpretation of material fact or law, or that the decision will have a substantial impact on the policies, practices, or operations of the Agency. The EEOC’s decision will also contain a description of the complainant's right to file a civil action in an appropriate U.S. District Court, together with the applicable timeframes and procedures for doing so. If the EEOC’s decision requires corrective action, DOL must demonstrate compliance to the EEOC.
  3. Enforcement of the EEOC’s Decision. If the EEOC’s decision on appeal requires remedial action to be taken and the complainant does not believe that DOL has complied with the decision, a petition for enforcement may be filed with the EEOC. The petition must specifically set forth the reasons that lead the complainant to believe that DOL is not complying with the decision. The EEOC will ascertain whether the Agency is implementing the decision. If the Agency is found not to be complying with the EEOC’s decision, efforts will be made to obtain compliance. Pursuant to the Cummings Act, if the EEOC determines that the Agency did not take appropriate disciplinary action in connection with a finding of discrimination and/or retaliation, the EEOC may refer the matter to the Office of Special Counsel (OSC) for a determination on the issue of discipline.

114 Special Circumstances

  1. Dissatisfaction with the Processing of an EEO Complaint. Allegations of dissatisfaction with the processing of a pending EEO complaint must be made to the CRC Director. Upon receipt, the Director, or their designee, will attempt to resolve any dissatisfaction as early and expeditiously as possible. A record of the complainant's concerns and any actions taken to resolve the concerns will be added to the complaint file. If no action is taken, an explanation of the reason(s) for not acting will be included in the complaint file.

    A complainant must always raise their concerns first with CRC, in the above manner, during the underlying EEO complaint. However, in cases where the complainant's concerns have not been resolved informally, the complainant may present those concerns to the EEOC at hearing, if one has been requested, or on appeal following CRC’s issuance of a FAD/FAA. If the EEOC finds that CRC has improperly processed the EEO complaint and that such improper processing had a material effect on the complaint, the EEOC may impose sanctions on CRC, as appropriate.

  2. Joint Processing and Consolidation of Complaints. EEO complaints filed by two or more complainants consisting of substantially similar allegations or relating to the same matter may be consolidated by CRC or the EEOC after notification to the parties. Two or more complaints filed by the same complainant will be consolidated by CRC after notification. When a complaint has been consolidated with one or more earlier complaints, CRC shall complete the investigation within the earlier of 180 calendar days after the filing of the last complaint or 360 calendar days after the filing of the original complaint, except that the complainant may request a hearing from the EEOC on the consolidated complaints any time after 180 calendar days from the date of the first filed complaint.
  3. Compliance with Settlement Agreements and Final Actions. If the complainant believes that DOL has failed to comply with the terms of a settlement agreement or FAD/FAA requiring remedial action, the complainant shall notify the CRC Director in writing, of the alleged noncompliance within 30 calendar days of when the complainant knew or should have known of the alleged noncompliance. If a provision in the settlement agreement requires that a complainant alert SOL or WECO, as appropriate, of the noncompliance prior to alerting CRC, then the deadline to contact CRC will not begin until after the timeframe identified in the settlement agreement. If it is found that DOL failed to comply with the terms of the settlement agreement, the complainant may request that the terms of the settlement agreement be specifically implemented or, alternatively, that the complaint be reinstated for further processing from the point processing ceased because of the settlement. CRC shall resolve the matter and respond to the complainant, in writing. If CRC has not responded to the complainant or if the complainant is not satisfied with CRC’s attempt to resolve the alleged noncompliance, the complainant may appeal to the EEOC’s OFO for a determination as to whether DOL has complied with the terms of the settlement agreement. The complainant may file such an appeal 35 calendar days after they have served CRC with the allegations of noncompliance, and a decision has not been issued by CRC. If a decision has been issued, and the complainant is not satisfied with the determination, the complainant must file an appeal within 30 calendar days of their receipt of CRC’s final decision. If the EEOC determines that DOL is not in compliance and the noncompliance is not attributable to acts or conduct on the part of the complainant, it may order specific enforcement of the terms of the settlement agreement or it may order that the complaint be reinstated for further processing. Allegations that subsequent acts of discrimination and/or retaliation violate a settlement agreement shall be processed as a separate and new EEO complaint.
  4. Class Complaints
    1. Who May File. Any member of a group of employees, former employees, or applicants (known as the "agent") who believes that any DOL policy or practice discriminates against members of the group (known as the "class") because of a common factor (the protected characteristics or motivations listed in Section 103) may file a class complaint. (29 C.F.R. § 1614.204)
    2. Pre-complaint processing. A class agent who wishes to file a class complaint must seek EEO counseling. The EEO counselor shall explain the class complaint procedures and the responsibilities of a class agent. Following counseling, the formal class complaint must be filed with CRC within 15 calendar days of receipt of the NRTF. The complaint must be signed by the class agent or their representative and must identify the policy or practice adversely affecting the class, as well as the specific action or matter affecting the class agent. Within 30 calendar days of receiving the complaint, CRC will forward the complaint and the counseling record to the EEOC for a determination on whether the class may be "certified." For this to occur, the following conditions must be established:
      1. Numerosity: The class contains so many members that consolidated processing of individual complaints is not practical;
      2. Commonality: There are questions of fact common to the class;
      3. Typicality: Claims by the class agent are typical of the claims of the class; and
      4. Adequacy of Representation: The agent or agent's representative is qualified to adequately protect the interests of all class members.
    3. Individual complaints on the same underlying allegations filed before or after a class complaint will not be dismissed but will be subsumed within the class complaint and held in abeyance pending the outcome of the class certification determination by the EEOC AJ. Notwithstanding the above, it is CRC’s policy to endeavor to conduct and compile a ROI at the time of filing to ensure availability of responsible management officials, witnesses, and various forms of evidence. If the class complaint is dismissed at the certification stage or on appeal, the individual complaint(s) may still proceed, unless the same or another basis for dismissal applies. If the class proceeds to hearing, the individual claim(s) may be presented by the class representative at the liability stage of the process or may be presented at the remedy stage by the complainant.
    4. The decision on class complaint certification will be made by an EEOC AJ, not CRC. After such decision is made, the EEOC will transmit the decision to the class agent and CRC. CRC must take final action by issuing a FAA within 40 calendar days of receipt. The final order shall notify the agent whether the Agency will implement the EEOC's decision. If the EEOC's decision is not adopted, CRC will file a concurrent notice of appeal on behalf of DOL with EEOC’s OFO. The FAA will also advise the complainant of their right to appeal the decision to the EEOC or file an action in an appropriate U.S. District Court, together with the timeframes and procedures for doing so. SOL, or OIG if applicable, and the relevant DOL agency WECO, will also receive notice of DOL's final action.
    5. If the EEOC has certified and accepted a class complaint, CRC may commence an investigation - the parameters of which shall be guided by the EEOC. At the end of the investigative period, a hearing shall be conducted. For more information on this process, see 29 C.F.R. § 1614.204 (e)-(h).
    6. A complainant may move for class complaint certification at any reasonable point in the process when it becomes apparent that there are class complaint implications to the claim raised in an individual complaint, even prior to the conclusion of the EEO counseling process. If a complainant moves for class complaint certification after completing the EEO counseling process, no additional counseling is required. The EEOC AJ may deny class complaint certification if the complainant has unduly delayed in moving for certification.
  5. Mixed Case Complaints. A "mixed case" complaint raises allegations of discrimination in connection with an Agency action that is appealable to the MSPB (including removal or discharge beyond the probationary period of employment, constructive discharge, reduction in grade or pay, or suspension for more than 14 days). An employee or former employee must decide whether to file an allegation of discrimination in a mixed case either with the MSPB or under the EEO complaint procedure of DOL but may not do both. See subparagraph 108(I) and 29 C.F.R. § 1614.302 for additional information on processing mixed case complaints and appeals to the MSPB.
    1. Filed with MSPB. If an employee or former employee files an appeal with the MSPB on an Agency action and alleges discrimination/retaliation, and if the MSPB does not question its jurisdiction to hear the appeal, an MSPB AJ will issue a decision following the completion of the appeal process. The MSPB AJ's decision may be appealed to the MSPB or the EEOC, but the EEOC's review is limited to the MSPB's application of relevant EEO law. Alternatively, a complainant has the right to file a civil action in U.S. District Court following the MSPB's decision.
    2. Filed with DOL.  Within 45 calendar days of the completion of the investigation into a mixed case complaint, CRC will issue a FAD without a hearing before an EEOC AJ. 29 C.F.R. § 1614.302(d)(2). If more than 120 calendar days have passed since the filing of the mixed case complaint with CRC, or if a complainant is not satisfied with CRC's FAD, they may file an appeal on the matter to the MSPB, not the EEOC, within 30 calendar days of receipt of the FAD, as specified at 5 C.F.R. § 1201.154(b)(2), or they may file a civil action as specified at 29 C.F.R. § 1614.310(g), but not both. 29 C.F.R. § 1614.302(d)(1)(i). An MSPB AJ will issue a decision on the mixed case complaint which, in turn, may be appealed to the MSPB or the EEOC, but the EEOC's review is limited to the MSPB's application of relevant EEO law. Alternatively, a complainant has the right to file a civil action in U.S. District Court following the MSPB's decision.
    3. Duplicate Filing. If a complainant files a mixed case formal EEO complaint with DOL and a MSPB appeal regarding the same action, CRC will determine which was filed first and that will be considered an election to proceed in that forum.
      1. If the MSPB appeal was filed first, CRC will dismiss the formal EEO complaint filed with DOL and advise the complainant that they must bring the allegations of discrimination to the attention of the MSPB, pursuant to 5 C.F.R. § 1201.155. The dismissal letter will advise the complainant of the right to petition the EEOC to review the MSPB’s final decision on any allegations of discrimination or retaliation. A dismissal of a mixed case complaint is not appealable to the EEOC except when it is alleged that CRC erroneously determined that the issue was a mixed case issue. If a formal EEO complaint contains both mixed case and non-mixed case issues, that is, if it includes claims that may be appealed to the MSPB and claims that may be heard by an EEOC AJ, then CRC will only dismiss those portions of the formal EEO complaint over which the MSPB would have jurisdiction. CRC will continue processing the remaining claims that are not appealable to the MSPB, as appropriate.
      2. If the formal EEO complaint was filed first, CRC will review the complaint and make appropriate determinations pursuant to Section 111 of this DLMS. If a formal EEO complaint includes both mixed case and non-mixed case issues, CRC will bifurcate the complaint and process the mixed case issue(s) separately from the non-mixed issue(s).
      3. If the MSPB appeal was filed first and CRC or MSPB questions the MSPB’s jurisdiction, CRC shall hold only mixed case issues in abeyance until the MSPB rules on MSPB jurisdiction. CRC must continue to process the non-mixed issues, notwithstanding MSPB’s determination. During this period, all time limitations for processing the mixed case issue(s) will be tolled. If the MSPB determines that it has jurisdiction over the matter, CRC will dismiss the complaint, or the mixed case issue(s). If jurisdiction is not found, and the MSPB dismissed the appeal, CRC will recommence processing the formerly mixed case issue(s) as a non-mixed case complaint. Notwithstanding the above, CRC reserves the right to conduct and compile a ROI on the mixed case issue(s) following the filing of the mixed case formal EEO complaint, to ensure availability of responsible management officials, witnesses, and various forms of evidence.
      4. If a complainant files a mixed case appeal with the MSPB instead of a mixed case complaint with DOL, and the MSPB dismisses the appeal for jurisdictional reasons, SOL shall promptly notify CRC of the MSPB’s dismissal. Thereafter, CRC will promptly notify the individual in writing of their right to contact an EEO counselor within 45 calendar days of receipt of this notice and file an informal EEO complaint, subject to 29 C.F.R. § 1614.107. The date on which the person filed their appeal with MSPB shall be deemed to be the date of initial contact with the counselor, if the individual timely contacts an EEO counselor in response to CRC’s notification.
      5. If a complainant files an appeal following receipt of CRC’s FAD in a mixed case complaint to the MSPB in a timely manner and the MSPB dismisses the appeal for jurisdictional reasons, CRC shall reissue the notice of right to elect between a hearing before an EEOC AJ and a FAD pursuant to 29 C.F.R. § 1614.108(f).
      6. If allegations of discrimination or retaliation were not considered by the MSPB in its final decision on an appeal, such as those allegations not raised in their appeal, CRC may accept and resume processing the complaint. The DOL’s FAD on such a complaint will also advise the complainant of the right to petition the MSPB to review its previous decision and consider the allegations of discrimination or retaliation.

115 Disciplinary Action for Conduct that is Inconsistent with Federal Antidiscrimination, Antiharassment, Whistleblower Protection, and Antiretaliation Laws

Assignment of Responsibilities

  1. All DOL Managers and Supervisors, including Agency Workforce Equality Compliance Office (WECO) Managers, have responsibility for:
    1. Immediately contacting the employee relations officer in the servicing human resources office to seek guidance in determining whether and what level of disciplinary or adverse action to propose upon concluding that a DOL employee has engaged in conduct that is inconsistent with Federal antidiscrimination, antiharassment, whistleblower protection, and/or antiretaliation laws, regulations or relevant DOL policy (i.e., the Secretary’s Policies on EEO or Harassing Conduct or the Reasonable Accommodation program).
    2. In response to a proposed disciplinary or adverse action and after receiving guidance from the employee relations officer, managers and supervisors (but not WECOs) are responsible for making a timely final decision on the proposed disciplinary or adverse action and imposing any penalty in a manner consistent with DOL policy/procedures and merit systems principles.
    3. Providing a copy of any final decision and/or action taken pursuant to this paragraph to CRC (usually handled by WECOs).
  2. DOL Agency Heads have responsibility for:
    1. Within two (2) business days of receiving a memorandum from CRC indicating that a finding of discrimination or retaliation has been issued by CRC or other adjudicative body, and in consultation with the agency WECO and OHR, identifying an appropriate management official to consider whether and what level of disciplinary or adverse action to propose against a DOL employee who has been found to have engaged in discriminatory and/or retaliatory conduct. If the Agency opts not to propose or otherwise act against an employee found to have engaged in discriminatory and/or retaliatory conduct, informing the CRC Director, in writing, of the reasons for the Agency's decision.
  3. OHR, after being contacted by a DOL management official for guidance in determining whether and what level of disciplinary or adverse action to propose, has responsibility for seeking coordinated input from CRC, SOL, and/or OIG to review the circumstances of the case and provide guidance to the requesting agency official on appropriate action.
  4. The Office of the Solicitor (SOL) or Office of Inspector General (OIG) has responsibility for:
    1. Notifying CRC that a final finding of discrimination and/or retaliation has been issued by an adjudicative body.
    2. Providing input, with OHR and CRC, to the requesting Agency official on appropriate discipline.
  5. CRC has responsibility for:
    1. Issuing a final finding of discrimination and/or retaliation stemming from an EEO complaint (through a FAD or FAA).
    2. Upon issuance or receipt of a final finding of discrimination and/or retaliation, providing a memorandum to the applicable Agency Head for consideration of whether and what level of disciplinary or adverse action to propose against a DOL employee who has been found to have engaged in discriminatory and/or retaliatory conduct.
    3. Providing input, with OHR and SOL and/or OIG, to the requesting agency official on appropriate discipline.
  6. The Chairperson of ARB has responsibility for:
    1. Issuing a final finding of discrimination and/or retaliation stemming from EEO complaints determined to present a potential conflict of interest for CRC (through a FAD or FAA).
    2. Upon issuance or receipt of a final finding of discrimination and/or retaliation, providing a memorandum to the applicable Agency Head for consideration of whether and what level of disciplinary or adverse action to propose against a DOL employee who has been found to have engaged in discriminatory and/or retaliatory conduct.
    3. Providing input, with OHR and SOL and/or OIG, to the requesting Agency official on appropriate discipline.

116 Procedures for Determining Appropriate Disciplinary Action

  1. Pursuant to the Cummings Act, accountability in the enforcement of the rights of Federal employees is furthered when Federal agencies consider whether and what level of disciplinary or adverse action to propose against Federal employees found to have engaged in conduct that is inconsistent with Federal antidiscrimination, antiharassment, whistleblower protection, and/or antiretaliation laws, regulations or relevant DOL policy. When discriminatory (including retaliatory) acts occur, the following steps are required:
    1. At the conclusion of an investigation, when a DOL management official is notified that a DOL employee has engaged in conduct inconsistent with Federal antidiscrimination, antiharassment, whistleblower protection, and/or antiretaliation laws, regulations or relevant DOL policy,(8) they shall immediately contact the employee relations officer in the servicing human resources office for guidance in determining whether and what level of disciplinary or adverse action to propose.
    2. If CRC or ARB issues a final finding of discrimination and/or retaliation (FAD or FAA), CRC shall inform the applicable Agency Head and Agency WECO that disciplinary action may be appropriate. Within two (2) business days of receiving notice of the finding of discrimination or retaliation from CRC, the agency WECO will notify the appropriate management official identified in accordance with Section 115(B)(1) above that they must contact their servicing employee relations officer in the servicing human resources office for guidance in determining whether and what level of disciplinary action to propose.
    3. If a final finding of discrimination and/or retaliation is issued following a hearing before an AJ of the MSPB, SOL or OIG shall notify CRC, and CRC shall issue a memorandum to the applicable Agency Head and Agency WECO informing them that disciplinary action may be appropriate. Within two (2) business days of receiving the memorandum from CRC, the agency WECO shall notify the appropriate management official identified in accordance with Section 115(B)(1) above that they must contact the employee relations officer in the servicing human resources office for guidance in determining whether and what level of disciplinary action to propose.
    4. If a final finding of discrimination and/or retaliation is issued in connection with a case in Federal court, the SOL or OIG shall notify CRC, and CRC shall issue a memorandum to the applicable Agency Head and agency WECO informing them that disciplinary action may be appropriate. Within two (2) business days of receiving the memorandum from CRC, the agency WECO shall notify the appropriate management official identified in accordance with Section 115(B)(1) above that they must contact the employee relations officer in the servicing human resources office for guidance in determining whether and what level of disciplinary action to propose.
  2. For any finding of discrimination or retaliation identified above in Section 116(A) (1-4), and pursuant to the Cummings Act (amending the No FEAR Act), within 120 calendar days following the end of the appeal period of a FAD or FAA, DOL is required to:
    1. Consider appropriate disciplinary or adverse action against the individual found to have engaged in discriminatory and/or retaliatory conduct;
    2. Enter any disciplinary or adverse action imposed against the offending individual in their OPM personnel file explaining the reason for the action;
    3. Submit a Disciplinary Action Report to CRC, which must then submit the report to the EEOC, explaining:
      1. Whether disciplinary or adverse action has been proposed against a Federal employee as a result of the finding of discrimination and/or retaliation, and
      2. The reasons for any disciplinary or adverse action proposed or for proposing no disciplinary action.
    4. Post the notice of a finding of discrimination and/or retaliation to DOL’s public-facing webpage in accordance with the Cummings Act, which can be located using this link: Notification of Equal Employment Opportunity Violations
  3. To ensure adherence to this Policy and encourage consistency across DOL, after being contacted by the Agency Head or appropriate management official as described above, the employee relations officer in the servicing human resources office shall seek coordinated input from CRC and SOL and/or OIG, as appropriate, to review the circumstances of the case and provide guidance to the requesting agency official on appropriate discipline. The coordinated input and any resulting guidance should be given no later than thirty (30) calendar days from the date that the employee relations officer in the servicing human resources office is contacted regarding the inappropriate conduct or finding of discrimination or retaliation.
  4. The appropriate DOL manager shall decide on whether and what level of disciplinary or adverse action to propose against the offending employee in a manner consistent with DOL policy/procedures and merit systems principles.
  5. A memorandum identifying the discipline taken (including plans to propose disciplinary action) shall be provided by OHR to CRC and the agency WECO. If discipline is not taken (or there are no plans to propose discipline), the Agency Head or their designee shall inform the CRC Director, in writing, of the reasons for not imposing discipline. CRC shall report on the numbers and types of disciplinary actions taken for conduct that is inconsistent with these laws within DOL’s Annual No FEAR Act Report and through quarterly reports required to be posted via DOL.gov.
  6. Certain personnel actions taken against a bargaining unit employee under this Policy may be contested through grievance/arbitration procedures. Personnel actions taken against an employee under this Policy may also be contested through the EEO complaint process, with the MSPB, or both through the mixed case processes discussed in Section 114 (E) depending on the circumstances of the situation. Any given action will identify the employee's appeal rights for the action.

Nothing in the No FEAR Act (as amended by the Cummings Act) alters existing laws or permits DOL to take unfounded disciplinary or adverse action against a Federal employee or to violate the procedural rights of a Federal employee who has been accused of discrimination and/or retaliation. Disciplinary or adverse action should not be taken reflexively against a DOL employee found to have engaged in discriminatory or retaliatory conduct, but should be implemented as a result of a methodical consideration of all the facts and in accordance with applicable processes.

117 Mandatory Training

To ensure an effective Policy and create a work environment that is free from harassing conduct, unlawful discrimination, and retaliation, training on this Policy and procedures shall be mandatory for all Department employees and others as indicated.

The following training on workplace discrimination, harassment, and retaliation is currently identified as mandatory:

training on workplace discrimination, harassment, and retaliation is currently identified as mandatory
TopicAudienceTraining provided
No FEAR Act TrainingDOL Federal and contractor employeesWhen hired and then biennially thereafter
EEO Training on Essential HR Competencies for Managers and Supervisors (workplace harassment is one of the topics included in this training)New DOL managers and supervisorsWithin one (1) year of being hired or promoted into a managerial or supervisory role and thereafter as determined by OHR as an aspect on ongoing training requirements.
New Employee Orientation (NEO)
EEO, Harassing Conduct, Title VII Complaint Process, and Reasonable Accommodations		All new DOL employeesWithin 90 calendar days of being hired.
Harassing Conduct, Title VII Complaint Process, and Reasonable Accommodation Refresher TrainingAll DOL EmployeesRegularly (training schedules will be developed depending on available resources).
Workplace Sexual HarassmentNon-supervisory employeesWhen hired and then biennially thereafter — alternating years with the No FEAR Act training.
Workplace Sexual HarassmentDOL managers, supervisors and non-career appointeesWhen hired and then annually thereafter.

(1) Managed by the Office of Human Resources (OHR), the Department’s AEP is not presented through this Chapter. Information may be found here: Diversity, Equity, Inclusion, and Accessibility (DEIA) - LaborNet - United States Department of Labor (dol.gov) .

(2) By memorandum dated October 22, 2009, the Secretary delegated this authority to the Deputy Secretary.

(3) If not explicitly indicated throughout this Chapter, CRC will ensure that the responsibilities of the Chair of the ARB are fulfilled when complaints with the potential for a conflict of interest are filed.

(7) Employees and applicants for employment with disabilities must have access to Section 508 conformant Information and Communication Technology (ICT) to ensure that they can document and submit EEO complaints in accordance with the EEO complaint process. ICT systems used for the formal EEO complaint process may consist of a combination of hardware, software, and electronic content, all of which must conform to the applicable requirements in the current ICT Standards and Guidelines (36 C.F.R. § 1194).

(8) Such a determination may be made by the supervisor who directly witnesses and/or otherwise establishes a violation (e.g., misconduct such as when an employee uses an epithet, physically touches someone in an inappropriate manner or otherwise engages in clear discriminatory behavior based on a protected characteristic) either through or outside of DOL’s Harassing Conduct Policy and Procedures.

Last updated: August 5, 2024