Actions by Federal Employees

Author:George Rutherglen

Actions by federal employees are governed by section 717 of Title VII.[508] A federal employee must exhaust administrative remedies in his or her agency, in accordance with the time limits specified in EEOC regulations.[509] A complaint must be made to an EEO counselor within 45 days of the alleged discrimination, and a written complaint must be filed with the agency within 15 days of the final interview with the EEO counselor.[510] If the federal employee then takes the case to the EEOC, a complaint must be filed with the EEOC within 30 days of receipt of the final decision of the agency.[511] If not, an action can be filed in federal court within 90 days of notice of the employing agency's final decision or, if the employing agency has not reached a final decision, at any time after 180 days of filing with the agency.[512] If a complaint is filed with the EEOC, then the EEOC acts in an adjudicative capacity, as the successor to the Civil Service Commission.[513] If the federal employee is dissatisfied with the results of the EEOC proceedings, the employee may file an action in federal court under the same time limits as an action filed directly from agency proceedings: within 90 days of notice of a final decision by the EEOC or, if the EEOC has not reached a final decision, at any time after 180 days of filing with the EEOC.[514]

The Supreme Court has held that these time limits are not jurisdictional but rather are subject to equitable tolling, just like claims against private employers.[515] So, too, damages can be awarded to federal employees, both by courts and by the EEOC.[516] Actions by federal employees result in de novo judicial review, just like other Title VII actions.[517] However, actions to enforce or review an administrative decision favorable to the federal employee result in only limited judicial review.[518]

For employees covered by its terms, section 717 provides the exclusive remedy for employment discrimination.[519] Special, complicated procedures apply to claims of discrimination that are joined with claims that may be brought before the Merit Systems Protection Board.[520] By its terms, however, section 717 does not apply to all federal employees.[521] The Supreme Court has held that excluded federal employees have an implied right of action for disparate treatment in violation of the Fifth Amendment.[522] Employees of the Senate and the House of Representatives, and presidential appointees, however, now have...

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