Avoiding Common Timeliness Pitfalls to Claims of Sexual Harassment in the Federal Workplace
In this #metoo era, federal employees facing sexual harassment, many of whom have long remained silent due to fears of career setbacks or other retaliation, may finally feel more comfortable coming forward. Unfortunately, some are finding that the #metoo wave has come too little, too late, literally.
Federal employees, unlike private sector employees, are required to initiate claims of discrimination under Title VII claims, including claims of sexual harassment, within a minuscule window of just 45 calendar days. If an employee entering the EEO process cannot identify an example of harassment occurring within 45 days of their contact with their EEO office, the entire harassment claim, which could have taken place over several months or even years, can legally be dismissed for untimeliness at the formal EEO complaint stage. Without a timely complaint, the federal employee has no ability to proceed forward in the EEO process and is essentially barred from obtaining a remedy for the harassment they suffered.
Still, many federal employees who do report their claims of sexual harassment in a timely manner, i.e., within 45 days of the most recent example of harassment, still find their complaints vulnerable to dismissal due to bad or confusing guidance from the official to whom they reported their claims. There are two specific situations of bad advice or potential pitfalls that have become far too common. The first is where a federal employee has contacted a member of EEO or some other agency employee logically connected with the EEO process concerning claims of sexual harassment and instead of receiving guidance on their EEO rights and remedies, the employee is encouraged to work the issue through their chain of command before considering a more formal complaint procedure.
However, the very suggestion that you reconsider your choice to file an EEO complaint is unlawful in and of itself, because any restraint of a federal employee’s right to proceed with an EEO complaint is strictly prohibited by the anti-retaliation statutes. More, the deadline for EEO contact does not toll as you attempt to work the matter with your command. The employees who heed this advice and delay their EEO actions to engage in informal meetings with managers often find themselves facing timeliness issues when those meetings are unfruitful, and they want to move forward on their original complaint.
The second instance of bad advice occurs when the employee reporting harassment is advised that an “investigation” into their allegations will be conducted. These employees reasonably believing themselves to have successfully entered the EEO process, then await the outcome of the investigation. Unfortunately, what the employee comes to learn far too late is that the referenced investigation is a limited, internal Agency administrative investigation, which is outside the realm of the EEO process and carries no remedies for the harassed employee.
Making matters more confusing, an EEO investigation is part of the normal processing of an EEO complaint, but does not come until later in the process. Accordingly, at the time the employee learns of the nature and outcome of the investigation, many of whom are unsatisfied with the outcome, it is often too late to proceed with the EEO complaint, and the employee’s complaint is dismissed on the basis of untimeliness. While there are legal defenses available to overcome dismissal of your complaint on the basis of bad advice, the federal employee is forced to raise these arguments on appeal of the dismissal, causing unnecessary delays to the timely processing of their complaints in an already lengthy process.
To ensure you have the ability to seek remedies for the sexual harassment you have suffered and avoid some of the pitfalls discussed in this article, the attorneys at Federal Practice Group suggest you:
- Do not delay contacting the agency’s EEO office to initiate your claims of harassment
- State to the EEO office that you want to file an informal EEO complaint
- Do not assume your claims are bring properly processed and follow up with EEO often to understand where you are in the process and what steps are next
- Consult with an attorney if you received notice that your complaint of harassment has been dismissed or you are concerned with the EEO processing of your complaint
Thanks to our friends and contributors from The Federal Practice Group for their insight into sexual harassment claims. Ms. Sarah McKinin is a senior associate at The Federal Practice Group. She represents clients in federal labor and employment claims before the Equal Employment Opportunity Commission (EEOC), Office of Inspector General (OIG), Office of Special Counsel (OSC) and the Merit System Protection Board (MSPB).