3 FAH-1 H-1520
PROCESS FOR DEPARTMENT OF STATE CIVIL SERVICE AND FOREIGN SERVICE EMPLOYEES OR
EMPLOYMENT APPLICANTS ALLEGING SEXUAL ORIENTATION DISCRIMINATION
(CT:POH-112; 06-02-2005)
(Office of Origin: OCR)
3 FAH-1 H-1521 GENERAL
3 FAH-1 H-1521.1 Purpose
(CT:POH-112; 06-02-2005)
(State Only)
(Foreign Service and Civil Service Employees)
This subchapter implements the Departments policy of
equal employment opportunity without regard to sexual orientation (including
sexual orientation persecution/intimidation and retaliation for opposing
discrimination and/or filing or participating in the investigation of a
complaint) (3
FAM 1511.1 paragraph a). These procedures are available to individuals employed in the Departments Foreign Service or Civil Service appointive
positions and applicants for such positions, except that non-United States
citizens who are employed in, or who apply for, positions located outside the
territorial boundaries of the United
States may not utilize the procedures established by this subchapter.
3 FAH-1 H-1521.2 Policy
(TL:POH-38; 12-19-1997)
(State Only)
(Foreign Service and Civil Service Employees)
The Departments objective is to process complaints of
discrimination on the basis of sexual orientation to the maximum extent
practicable, in a manner consistent with Equal Employment Opportunity
Commission (EEOC) regulations (29 CFR 1614), as modified, clarified, and/or
supplemented by these guidelines.
3 FAH-1 H-1521.3 Responsibilities
(CT:POH-112; 06-02-2005)
(State Only)
(Foreign Service and Civil Service Employees)
a. The Assistant
Secretary for Civil Rights (A/S) should ensure that complaints of sexual
orientation discrimination are processed fairly and promptly.
b. The A/S, or
his/her designee, should promulgate and interpret
procedures for processing complaints of sexual orientation discrimination, and should act as the Departments decision-maker
with respect to complaints filed under these procedures.
c. Prior to resolving a complaint filed in accordance
with these procedures the A/S will assure
that the Director General of the Foreign Service (DG),
the Office of the Legal Adviser (L), and any other appropriate officials are
consulted in a finding of discrimination, the development of remedies, and
settlement of complaints.
3 FAH-1 H-1521.4 Authorities
(CT:POH-112; 06-02-2005)
(State Only)
(Foreign Service and Civil Service Employees)
a. The Presidents explicit request (in his EEO
statement dated November 22, 1993) that each Federal agency and Department
establish a workplace free from discrimination and harassment, including
discrimination and harassment on the basis of sexual orientation.
b. The provisions of the
Departments Discriminatory Harassment Policy, articulated at 3 FAM 1524, applies by its own terms to
harassment on the basis of sexual orientation.
3 FAH-1 H-1522 COMPLAINT PROCESSING
(CT:POH-112; 06-02-2005)
(State Only)
(Foreign Service and Civil Service Employees)
a. Since neither the Equal Employment Opportunity
Commission nor any other outside agency has appellate jurisdiction over
administrative complaints of sexual orientation discrimination, this process
shall be completely internal to the
Department of State. However, for purposes of efficiency and economy, the
Department has chosen to incorporate the EEO counseling procedure described in
29 CFR 1614.105 in this process. In cases where
an employee decides to file a grievance, the Foreign Service Grievance Board
should have appellate jurisdiction.
b. Sexual orientation discrimination complaints are not
governed by any statutory prohibition or external
regulatory process. Remedies authorized under Title VII, such as front pay,
interest on back pay, attorney fees, compensatory damages, or any other
monetary relief other than back pay, are not available in such cases.
3 FAH-1 H-1523 EEO COUNSELING STAGE
(CT:POH-112; 06-02-2005)
(State Only)
(Foreign Service and Civil Service Employees)
a. Aggrieved individuals
(employees or employment applicants), who believe they have been discriminated
against on the basis of sexual orientation, must consult an EEO counselor. The
names and locations of such counselors may be obtained from the Departments Office of Civil Rights (S/OCR) (telephone number
202-647-9295) and are available on its intranet website.
b. An aggrieved individual must initiate contact with
an EEO Counselor within 45 calendar days of the date of the matter alleged to
be discriminatory or, in the case of a personnel action, within 45 days of the
effective date of the action. The A/S may
extend the 45-day time limit when:
The individual shows that he/she
was not notified of the time limits and was not otherwise aware of them
The individual did not know and reasonably should not have known
that the discriminatory matter or personnel action occurred
Despite due diligence, the individual was prevented by
circumstances beyond his/her control from
contacting a counselor within the time limit
For other reasons considered
sufficient by the Assistant Secretary and consistent with established EEOC precedent
for issues under that agencys jurisdiction
c. Unless the aggrieved individual
agrees either to extend the counseling
period under 3
FAH-1 H-1523 paragraph d, or elects alternate
dispute resolution procedures in lieu of
traditional counseling, the counselor shall conduct the final interview with
the aggrieved individual within 30 calendar days of the date the aggrieved
individual brought the matter to the counselors attention. If the matter has
not been resolved, the counselor shall inform the aggrieved person in writing,
not later than the thirtieth day after contact, of the following:
The right to file a discrimination complaint within 15
days of receipt of the notice of final interview
and right to file
The appropriate official
with whom to file a formal complaint of sexual orientation discrimination
Complainants duty to assure that the Department is
informed immediately in writing if the
complainant retains counsel or a representative
d. Prior to the end of the 30-day period, the aggrieved
individual may agree in writing with the
Department to postpone the final interview and extend the counseling period for
an additional period of not more than 60 calendar days. If the matter has not
been resolved before the conclusion of the agreed extension, the EEO counselor should issue the notice described in 3 FAH-1 H-1523 paragraph c.
e. Where the aggrieved
individual elects to participate in the Departments alternative dispute
resolution procedure (ADR), the Department should make every reasonable effort
to resolve the matter in dispute or inform the
aggrieved individual of its decision not to offer ADR within 90 days of the
date of election of ADR. If the matter has not been resolved before the
ninetieth day, the notice described in 3 FAH-1 H-1523 paragraph c should be
issued.
f. The EEO counselor shall not attempt in any way to
restrain the aggrieved individual from
filing a complaint of sexual orientation discrimination.
g. The EEO counselor
shall only reveal the identity of an aggrieved individual when the aggrieved
individual has explicitly granted the counselor permission to do so, or until
the Department has received a formal discrimination complaint from the
aggrieved individual involving the same matter, whichever occurs first.
3 FAH-1 H-1524 COMPLAINT PROCEDURES
3 FAH-1 H-1524.1 Complaint Filing
(CT:POH-112; 06-02-2005)
(State Only)
(Foreign Service and Civil Service Employees)
a. A complaint must be filed within 15 calendar days of
receipt of the notice required by 3 FAH-1 H-1523
paragraphs c through e.
b. A complaint must contain a signed statement from the
person claiming to be aggrieved or that persons attorney. This statement must
be sufficiently precise to identify the aggrieved individual and to describe
generally the action(s) or practice(s) that form the basis of the complaint.
The complaint must also contain a telephone number and address where the
complainant or the representative can be contacted.
c. The Department shall acknowledge receipt of a
complaint in writing and inform the complainant of the date on which the
complaint was filed.
3 FAH-1 H-1524.2 Dismissal of
Complaints
(CT:POH-112; 06-02-2005)
(State Only)
(Foreign Service and Civil Service Employees)
The A/S or his/her delegate should dismiss a complaint or a portion of a
complaint:
(1) That fails to state a claim of sexual orientation
discrimination or states a claim that is pending before or has been decided by
the Department;
(2) That fails to comply with the applicable time
limits contained in 3 FAH-1 H-1523
paragraphs b and c, unless the A/S extends
the time limits for such good cause described in 3 FAH-1 H-1523
paragraph b, or that raises a matter that has not been brought to the attention
of a counselor and is not like or related to a matter that has been brought to
the attention of a counselor;
(3) That is the basis of a pending civil action in a
United States District Court in which the complainant is a party, or that was
the basis of a civil action decided by a United States District Court in which
the complainant was a party;
(4) Where the complainant has raised the matter in a
statutory or negotiated grievance procedure that permits allegations of sexual
orientation discrimination (such as the Foreign Service grievance process) or
as an affirmative defense in an appeal to the Merit Systems Protection Board;
(5) That is moot or alleges that a proposal to take a
personnel action, or other preliminary step towards taking a personnel action,
is discriminatory;
(6) Where the complainant cannot be located, provided
that reasonable efforts have been made to locate the complainant and the
complainant has not responded within 15 days of a notice of proposed dismissal
sent to his/her last known address;
(7) Where the Department has provided the complainant
with a written request to provide relevant information or otherwise proceed
with the complaint, and the complainant has failed to respond to the request
within 15 days of its receipt or the complainants response does not address the
Departments request, provided that the request included a notice of the
proposed dismissal. Instead of dismissing for failure to cooperate, the
complaint may be adjudicated by Final Agency Decision if sufficient information
for that purpose is available; or
(8) If the complainant
refuses an offer of settlement that contains a Department offer of full relief
as certified by the Assistant Secretary for Civil Rights within 30 calendar
days of receipt, provided that the offer gave notice that failure to accept
would result in dismissal of the complaint.
3 FAH-1 H-1525 INVESTIGATION OF
COMPLAINTS
(CT:POH-112; 06-02-2005)
(State Only
(Foreign Service and Civil Service Employees)
a. The A/S, through EEO
investigators authorized by S/OCR to conduct investigations on behalf of that
office, shall develop a complete and impartial factual record upon which to
make findings on the matters raised by the written complaint. The Department
may use an exchange of letters or memoranda, interrogatories, affidavits, fact-finding
conferences, or any other probative fact-finding methods that efficiently and
thoroughly address the matters at issue. The A/S shall incorporate alternative
dispute resolution techniques in its investigative efforts to promote early
resolution of complaints, as the Assistant Secretary deems appropriate.
b. Investigators shall
adduce documentary and testimonial evidence pertinent to the complaint
allegations. Witnesses shall be subject to penalties under 18 U.S.C. 1001 for
knowing and willful false statements.
c. The complainant, the Department, and any employee
of the Department shall produce such documentary and testimonial evidence as
the investigator deems necessary.
d. When the complainant or the Department and its
employees fail, without good cause shown, to respond fully and in timely
fashion to requests for documents, records, comparative data, statistics,
affidavits, or the attendance of witness (es), the investigator may note in the
investigative record that the decision maker may, in appropriate circumstances:
(1) Draw an adverse inference that the requested
information, or the testimony of the requested witness, would have reflected
unfavorably on the party refusing to provide the requested information;
(2) Consider the matter to which the requested
information or testimony pertains to be established in favor of the opposing
party;
(3) Exclude other evidence offered by the party
failing to produce the requested information or witness;
(4) Issue a decision fully or partially in favor of
the opposing party; or
(5) Take such other actions as deemed appropriate.
e. The A/S should
make every effort to complete the investigation within 180 days of the date of
filing the complaint.
f. Upon completion of the investigation, the A/S, or his/her delegate, should notify the complainant that the
investigation has been completed and should
provide the complainant with a copy of the Report
of Investigation.
3 FAH-1 H-1526 FINAL AGENCY DECISIONS
(CT:POH-112; 06-02-2005)
(State Only)
(Foreign Service and Civil Service Employees)
a. The A/S, or his/her
delegate, should issue a written decision based upon the investigation and
matters of official record and notice. The decision should consist of findings
on the merits of each issue in the complaint and, when discrimination is found,
should award such appropriate remedies and relief, as the A/S deems
appropriate. Such remedies and relief may include:
Employment offers to
applicants
Promotional relief
Reassignment
Cancellation of
discriminatory personnel actions
Expungement of adverse
documentation from Department records
b. Such decisions are administratively final and
non-reviewable. In cases where the A/S finds discriminatory practices or
procedures that should be eliminated, the A/S shall make such a recommendation
to the Under Secretary for Management.
3 FAH-1 H-1527 MULTI-BASIS COMPLAINTS
(CT:POH-112; 06-02-2005)
(State Only)
(Foreign Service and Civil Service Employees)
In the event a complaint is filed which contains an
allegation of discrimination based on sexual orientation and additional bases
covered by EEOC regulations, all allegations will be investigated concurrently.
However, following the investigation, those allegations not based on sexual
orientation will be processed in accordance with existing
procedures outlined in 29 CFR 1614, and the A/S
will determine whether to proceed with a final decision regarding the sexual
orientation allegation or to defer action on the sexual orientation allegation
until the 29 CFR 1614 procedures are exhausted.
3 FAH-1 H-1529 MATTERS OF GENERAL
APPLICABILITY
3 FAH-1 H-1529.1 Consensual
Settlement Encouraged
(CT:POH-112; 06-02-2005)
(State Only)
(Foreign Service and Civil Service Employees)
The A/S should make
all reasonable efforts to settle voluntarily complaints of sexual orientation
discrimination as early as possible in, and throughout, the administrative
processing of the complaints, including the pre-complaint counseling stage. Any
settlement reached should be reduced to
writing and signed by both parties, and should
identify the allegations resolved.
3 FAH-1 H-1529.2 Representation
and Official Time
(CT:POH-112; 06-02-2005)
(State Only)
(Foreign Service and Civil Service Employees)
All provisions regarding
representation and reasonable time contained in 3 FAH-1 H-1514 applies to complaints under
this subchapter.
3 FAH-1 H-1529.3 Disqualification
of Representative
(CT:POH-112; 06-02-2005)
(State Only)
(Foreign Service and Civil Service Employees)
In cases where the representation of a complainant would
conflict with the official or collateral duties of the representative, the A/S may, after giving the representative an
opportunity to respond, disqualify the representative.
3 FAH-1 H-1529.4 Official
Correspondence with Representative
(CT:POH-112; 06-02-2005)
(State Only)
(Foreign Service and Civil Service Employees)
a. Unless the complainant states otherwise in writing,
after the A/S has received written notice
of the name, address, and telephone number of a non-attorney representative for
the complainant, all official correspondence from
the Department on the subject of the pending complaint of discrimination should
be with the representative, with copies to the complainant.
b. When the complainant designates an attorney as
representative, service of documents and decisions on the complaint should be made on the attorney and not
on the complainant. The attorney should compute
time frames for receipt of materials by the complainant from the time of the
attorneys receipt.
c. The complainant must serve all official
correspondence on the designated representative of the Department.
3 FAH-1 H-1529.5 Complainant
Responsibility
(CT:POH-112; 06-02-2005)
(State Only)
(Foreign Service and Civil Service Employees)
The complainant should, at
all times be responsible for proceeding with the complaint, whether or not
he/she has designated a representative.
3 FAH-1 H-1529.6 Official Time for
Witnesses
(CT:POH-112; 06-02-2005)
(State Only)
(Foreign Service and Civil Service Employees)
Witnesses who are Department employees, regardless of
their tours of duty, should be in a duty
status when their presence is authorized or required by Department officials
and/or an investigator in connection with the processing of a complaint of discrimination.