Background Information for
DOJ Order 1200.1, Part 4, Equal Employment Opportunity

Chapter 1.  Equal Employment Opportunity Program
Jul. 6, 2000
Revised Sep. 12, 2003

Order canceled by this chapter:  DOJ 1713.4, Equal Employment Opportunity, November 6, 1972. (See paragraph 3 of Change 4.)

There were no major changes in Department policy. The chapter reflects changes made in Governmentwide equal employment opportunity regulations since the Department's previous order on this subject was issued.

Discussion of comments:

The final chapter has been updated to reflect the Equal Employment Opportunity Commission's regulations concerning Federal Sector Equal Employment Opportunity: 29 CFR Part 1614, that were published on July 12, 1999. The regulations became effective on November 9, 1999.

A component requested that we review use of the terms "bureau" and "component" in the draft chapter. We have adjusted these terms, as appropriate, in accordance with their definitions in Appendix I of the Order, Human Resources Dictionary. In response to another suggestion from the component, we have also clarified responsibilities for special emphasis and affirmative action programs in paragraphs B.5.g. and h.

As suggested by a division, in paragraph B.2. we have deleted the sentence on promoting and achieving a workforce which is fully representative since this is covered under Affirmative Action Programs in paragraph B.6. We have not adopted the division's suggestion to remove the term "sexual harassment" from the last sentence of paragraph B.2. Although discrimination on the basis of sex is covered by an earlier sentence in the paragraph, we want to emphasize the Department's commitment to combat sexual harassment.

We have not adopted the division's suggestion to add an example or explanation of the circumstances under which the Director of EEO would intervene in the processing of a discrimination complaint and the nature of the intervention because of the myriad of scenarios in which such intervention might take place. We believe that paragraph B.5.b. adequately covers this point. We have also not adopted the same division's request that we address whether allegations of reprisal raised after the filing of a complaint will "undergo a counseling stage and efforts made to determine if there is any merit to the complaint." Generally, complaints of reprisal will be processed no differently than any other complaint. It is improper to address the merits of a complaint during the counseling or acceptance stage of the complaints process. The purpose of the counseling stage is to define the issues raised by a complainant and to attempt to informally resolve the complaint. The only determination to be made by the EEO Staff or a bureau during the acceptance stage is whether or not the complainant has stated a claim in accordance with 29 CFR 1614.107, EEOC's Management Directive 110, and applicable case law. The merits of a complaint are addressed by the EEOC, the Department's Complaint Adjudication Officer, and in some cases, the Federal courts.

The same division also made a number of editorial suggestions which we have adopted. They include addition of a cross-reference at the end of paragraph B.5.d. on responsibilities of the Director of the EEO Staff to paragraph C.14. on dismissals of complaints, and a reorganization of the material in B.7. of the final chapter on discrimination complaint processing system and the information on complaint processing under C. Documentation and Reporting.

As suggested by a bureau, we have added, in paragraph B.7.b. on filing a complaint with the bureau where the complaint arose, a cross-reference to paragraph C.13. on processing conflict of interest cases. We have not adopted the bureau's suggestion that we add a policy statement that EEO officials cannot serve as representatives for complainants. We believe that this is adequately covered in paragraph B.7.g., on representation, by management's authority to disallow an employee's choice of representative under certain circumstances . We have adopted the bureau's suggestion to add a statement that a bureau's processing of an anonymous, informal complaint does not preclude presentation of the aggrieved person's issues to management (see paragraph B.7.h.).

A component recommended that we include a description of the Department's Alternative Dispute Resolution (ADR). We had already included an overall description of ADR in paragraph C.11, which directs the reader to 29 CFR 1614 and the EEO Staff for ADR procedures, and we do not believe additional detail is warranted in this chapter. Likewise, we have not adopted the component's suggestion to add procedures for bringing a class complaint, or a reference to the procedures in 29 CFR 1614.204, because we had already included references to 29 CFR 1614 and the Equal Employment Opportunity Commission's Management Directive MD-110. (Links to these references will be provided for this chapter on the Internet.) We adopted the component's request to add a cross-reference to the flowchart on complaints processing in the addendum to the chapter to the paragraphs in the chapter on that topic (see the end of paragraph C.7.).

A bureau suggested that we address alleged discrimination complaints concerning an actor outside of the complainant's employing agency and situations in which extensions of time are granted to persons who wish to file complaints. We have not covered these situations because they are best dealt with on a case-by-case basis. The chapter is designed to address matters typically faced by Department managers and employees who may become involved in some aspect of the EEO program. We have adopted the bureau's suggestion that we indicate that an employee's right to a representative in the EEO process cannot be controlled or determined by a collective bargaining agreement (see paragraph B.7.g.) and that we include language indicating that sexual orientation complainants are not required to complete the administrative process before filing a civil action (see paragraph B.7.j.). In addition, in response to the bureau, we have clarified, in paragraph C.4. on investigation of the complaint, that the management official who may be provided a copy of the investigative file is designated by the bureau. Also at the bureau's request, we have clarified in paragraph C.10.a. on posting a notice, that the notice may be limited to all affected employees.

One division requested extensive changes that we have adopted where possible. Changes made in response to the division include clarification in paragraph B.7.e. on mixed cases, that in cases where the matter is appealable to the Merit Systems Protection Board (MSPB) and discrimination is alleged, the aggrieved person may file either a "mixed-case appeal" to the MSPB, or a "mixed-case complaint" through the administrative EEO complaint process, but not both; in paragraph C.5. on hearing and decision, that "discovery" may take place under direction of an EEO Administrative Judge; and in paragraph C.10 on official time, that bureaus are not obligated to change work schedules to facilitate the choice of a specific representative or to allow the complainant to confer with his or her representative.

Another division, in regard to paragraph C.1. on pre-complaint counseling, asked what happens if the employee misses the 45 day window for contacting an EEO counselor after the alleged discrimination took place. We have added that failure to contact an EEO counselor within the 45 day time limit may result in the dismissal of the complaint. At the request of the division, we have also clarified that the time period for completion of the investigation of the complaint in paragraph C.4. begins on the date on which the complaint was filed, and we have provided a brief description of alternative dispute resolution in paragraph C.11.

Sep. 12, 2003:
This change adds the Bureau of Alcohol, Tobacco, Firearms, and Explosives as a Bureau of the Department of Justice, pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002). (The Bureau has been added to the list of organizations in paragraph B.5.e.)(See paragraph 1 of Change 16.)