Federal employees have the right to be free from discrimination and harassment at work. The categories of prohibited discrimination and harassment include those based on race, sex, national origin, disability, and religion.  Federal employees also have the right to make complaints of discrimination and harassment without facing retaliation.

This page covers the following topics:

1. What are the categories of prohibited discrimination, harassment, and retaliation?
2. How do I know if I’ve been subject to discrimination, harassment, or retaliation?
3. How do I pursue a claim of discrimination, harassment, or retaliation?
4. Resources for more detailed information

This information on this page is current as of March 26, 2018.

1. What are the categories of prohibited discrimination, harassment, and retaliation?

Federal law prohibits discrimination based on race, color, religion, sex, national origin, age, disability, and genetic information. Below, we provide more detail on the most common types of prohibited discrimination. We then discuss harassment and retaliation. Throughout this section, we refer to materials published by the Equal Employment Opportunity Commission (EEOC), the federal agency that oversees anti-discrimination laws.

Race discrimination

Race discrimination occurs when an employee is treated negatively because of the employee’s race.

Examples of race discrimination may include an employee being terminated or disciplined for behavior that, when committed by an employee of a different race, is not subject to termination or discipline; an employee being paid less than employees of a different race who perform the same work; and an employee being passed over for a job or promotion in favor of a less qualified candidate of a different race.

The EEOC’s page on race discrimination is here.

Sex discrimination

Sex discrimination occurs when an employee is treated negatively because of the employee’s gender. Sex discrimination includes discrimination based on pregnancy. According to the EEOC, sex discrimination also includes discrimination based on sexual orientation or gender identity. (Source.)

Examples of sex discrimination may include an employee being terminated or disciplined for behavior that, when committed by an employees of a different gender, is not subject to termination or discipline; an employee being paid less than employees of a different gender who perform the same work; and an employee being passed over for a job or promotion in favor of a less qualified candidate of a different gender.

The EEOC’s page on sex discrimination is here.

National origin discrimination

National origin discrimination occurs when an employee is treated negatively because the employee is from a foreign country, has an accent, or is associated with a particular ethnicity.

Examples of national origin discrimination may include an employee being terminated or disciplined for behavior that, when committed by an employees of a different national origin, is not subject to termination or discipline; an employee being paid less than employees of a different national origin who perform the same work; and an employee being passed over for a job or promotion in favor of a less qualified candidate of a different national origin.

The EEOC’s page on national origin discrimination is here.

Disability discrimination

Disability discrimination occurs when an employee is treated negatively because the employee has a disability. Disability discrimination also occurs when an employee is denied an accommodation for a disability, unless the employer can demonstrate that the accommodation would impose significant difficulty or expense on the employer.  “Disability” is defined as a physical or mental impairment that substantially limits a person in their life if accommodations are not made. A short-term illness or impairment can qualify as a disability. (See this court decision.)

Examples of disability discrimination may include a disabled person being passed over for a job or promotion in favor of a less qualified candidate without a disability; and an employer terminating a disabled employee because the employer does not want to deal with the employee’s disability.

The EEOC’s page on disability discrimination is here.

Religious discrimination

Religious discrimination occurs when an employee is treated negatively because of the employee’s religion. Religious discrimination also occurs when an employee is denied an accommodation for the employee’s religious beliefs or practices, unless the employer can demonstrate that the accommodation would be too burdensome on the employer.

Examples of religious discrimination may include a religious person being passed over for a job or promotion in favor of a less qualified candidate of a different religion; or an employer terminating a religious employee because the employer does not want to deal with the employee’s religion.

The EEOC’s page on religious discrimination is here.

Age discrimination

Age discrimination occurs when an employee is treated negatively because of that employee’s age. Under federal law, age discrimination may be illegal if (1) the employer favors younger employees and (2) the victim of discrimination is older than 40 years old.

Examples of age discrimination may include an employee being passed over for a job or promotion in favor of a less qualified candidate who is younger; and an employee being terminated or disciplined for behavior that, when committed by younger employees, is not subject to termination or discipline.

The EEOC’s page on age discrimination is here.

Sexual harassment

Sexual harassment occurs when an employee is harassed because of the employee’s sex. Sexual harassment includes unwelcome sexual advances and offensive remarks about the employee’s sex. Although not all harassing behavior is considered illegal, harassment becomes illegal when it is “so frequent or severe that it creates a hostile or offensive work environment.” (Source)

Sexual harassment is most likely to be illegal when performed by a supervisor, but it can also be illegal when performed by a co-worker, customer, or client, depending on whether the employer knew or should have known of the harassment and whether the employer takes adequate steps to address it.

The EEOC’s page on sexual harassment is here.

Other types of harassment

Aside from sexual harassment, the law also prohibits other forms of harassment based on protected characteristics such as race or religion. Harassment occurs whenever an employee is subjected to frequent or severe “offensive jokes, slurs, epiphets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures” or other “interference with work performance” because of the employee’s race, religion, national origin, age, disability, or sex. (Source)

As with sexual harassment, other forms of harassment are most likely to be illegal when performed by a supervisor, but it can also be illegal when performed by a co-worker, customer, or client, depending on whether the employer knew or should have known of the harassment and whether the employer takes adequate steps to address it.

The EEOC’s page on harassment is here.

Retaliation

Retaliation occurs when an employee is treated negatively because that employee has complained about discrimination or harassment (formally or informally), filed a lawsuit, or participated in an investigation of discrimination or harassment.

Examples of retaliation may include an employee being terminated or given an undesirable work assignment after complaining of discrimination; and an employee being passed over for a promotion after testifying in favor of another employee’s claim of discrimination.

According to the EEOC, successful claims of retaliation from federal employees are more common that successful claims of discrimination or harassment. (Source) In some cases, employees may be unable to prove that they were subject to discrimination or harassment—or may choose to not even pursue a formal claim of discrimination or harassment—but nevertheless suffer retaliation and prevail in a claim against the employer.

The EEOC’s page on retaliation is here.

2. How do I know if I’ve been subject to illegal discrimination, harassment, or retaliation?

If you believe you may be a victim of discrimination, harassment, or retaliation, there are several things you should look for, many of which are listed below. You should also consider taking notes and maintaining documents related to relevant events, which may be useful if you file a claim.

Recognizing discrimination

One key indicator of discrimination is that you are treated worse than other employees who engage in similar behavior or have similar qualifications, but who do not share your protected characteristic (e.g., your race, gender, disability status, national origin, etc.). For example, if you have been disciplined for a particular behavior, you should look to see if other employees who have engaged in similar behavior have received the same discipline. Likewise, if you are denied a promotion, you should look to see if the promotion has been granted to similarly qualified candidates.

In many cases of discrimination, an employer gives a seemingly legitimate justification for its behavior, but the justification does not stand up to scrutiny. You should look to see if there are obvious flaws or inconsistencies in the employer’s explanation. For example, if the employer says you were denied a position or promotion because you do not have the required 10 years of experience, you should see if the candidate who is selected does have 10 years of experience. You should also see if the employer sticks to a single explanation, or if the employer changes its explanation over time. For example, if a supervisor says that you are being suspended for a particular reason, but then issues a written disciplinary notice that provides a different reason, this may be an indicator of discrimination.

Although not present in all cases of discrimination, you should also look for explicit comments from supervisors that relate to your protected status, e.g., comments including negative stereotypes about your race, gender, national origin, religion, etc.

Recognizing harassment

In order for harassment to be illegal, it must be related to sex or another protected characteristic, such as race, religion, national origin, or age. However, harassment may not be illegal if it has no connection to a protected characteristic, e.g., a boss who bullies all employees without regard to their characteristics. Consequently, if you believe you may be a victim of harassment, you should look for indications that the harassment is related to a protected characteristic. For example, does the harasser use offensive phrases related to your protected characteristic, e.g., racial slurs or offensive gendered language? Also, does the harasser single out employees who share your protected characteristic?

In order for harassment to be illegal, it must also meet a sufficient level of frequency or severity. Note that illegal harassment does not need to be both frequent and severe—a single severe incident can constitute illegal harassment, as well as a pattern of several incidents that are less severe. For example, a single incident of unwanted sexual touching may constitute illegal harassment, as well as offensive race-related jokes that occur on multiple occasions. Unfortunately, there are no bright line rules for severity or frequency.

Recognizing retaliation

To establish a claim of discrimination, you must demonstrate that you engaged in “protected activity,” which includes complaining about discrimination or harassment (formally or informally), filing a lawsuit, or participating in an investigation of discrimination or harassment. If you engage in protected activity and your employer then takes action against you, then you may be a victim of retaliation. You should look for indications that, after you engaged in protected activity, your agency began treating you differently. For example, if you are disciplined for a particular type of behavior, but performed the same behavior before filing a discrimination complaint without being disciplined, that may be a sign of retaliation. You should also consider whether you are being treated differently than employees who did not assert their rights.

An important question in retaliation cases is whether the person who took action against an employee knew about the employee’s protected activity, such as filing of a complaint. For example, if you filed a complaint with one supervisor, but a different supervisor decides to terminate you, you should consider whether the second supervisor was aware of your complaint.

You should also consider how much time passed between your protected activity, such as filing a complaint, and the employer taking action against you. The less time, the stronger the likelihood of illegal retaliation.

3. How do I pursue a claim of discrimination, harassment, or retaliation?

The main avenue for a federal employee to challenge discrimination, harassment, or retaliation is to file a complaint through the federal government’s “EEO” (Equal Employment Opportunity) process. At the end of this section, we describe other avenues that may be available for pursuing a complaint. Because these processes are complicated, you should consider seeking legal counsel before filing a complaint.

The information in this section applies to executive branch employees. Other processes are available for employees in the legislative and judicial branches.

Federal government EEO process

In fiscal year 2014 (the most recent year for which we have found data), over 14,000 federal employees filed complaints of discrimination, harassment, or retaliation through the federal government EEO process. In the same year, over 3000 complaints were resolved in favor of federal employees, with nearly $45 million awarded to those employees. (Source.)

This first step of the federal government EEO process is called “informal counseling.” You initiate this step by contacting your agency’s EEO office. In some agencies, this is referred to as the “Office of Civil Rights,” or OCR. You should contact the office, inform them that you believe you have been subjected to unlawful treatment, and provide facts supporting your complaint. You must contact the office within 45 calendar days of suffering the most recent incident of discrimination, harassment, or retaliation. If you are not sure how to contact your agency’s EEO office, try googling the name of your agency and “EEO.”

In this initial stage, you may be asked to participate in a “mediation” with the agency. Mediation refers to a discussion between you, your lawyer (if you choose to hire one), and one or more people from the agency, facilitated by a neutral professional mediator. The purpose of mediation is to attempt to reach a negotiated resolution of your complaint. You have the right to approve or refuse any resolution offered by the agency in mediation.

If your complaint is not resolved at this initial stage, then your agency’s EEO office will issue you a notice with instructions on how to file a formal complaint with the office. You must file the formal complaint within 15 calendar days of receiving this notice.

After you file a formal complaint, your agency’s EEO office will perform an investigation, often conducted by a contractor. The investigation must end within 180 calendar days, unless you amend your complaint or agree to extend the 180-day period. The investigator will typically interview or collect statements from the employee who filed the claim as well as others at the agency involved in the events giving rise to the claim. In addition, the investigator will typically request documents from the employee and the agency.

At the conclusion of the 180-day period, the investigator must provide the employee with a report from the investigation, which will describe the information gathered by the investigator, but will not state a conclusion as to whether the employee has been subject to discrimination, harassment, or retaliation.

At this point, the employee must choose between two options. First, the employee can request that the agency issue a decision regarding whether the employee was treated unlawfully. In most cases, the agency will rule against the employee. The employee can then appeal to the EEOC’s Office of Federal Operations or file a lawsuit in the local federal court.

Alternatively, rather than requesting a decision from the agency, the employee can request a hearing before an administrative judge at the EEOC. The chances of prevailing before an administrative judge may be higher than the chances of receiving a favorable decision from the agency, but the process can take a long time. If the administrative judge rules against the employee, the employee can appeal to the EEOC’s Office of Federal Operations or file a lawsuit in the local federal court.

Other options

In some cases, you may have other options for pursuing a claim of discrimination, harassment, or retaliation.

First, if you are covered by a collective bargaining agreement (CBA), you may be able to pursue a claim of discrimination through the grievance process in the CBA. This process is typically faster than the EEO process, and the union may provide representation. Keep in mind, however, that if you pursue a grievance, you may lose the right to pursue a claim through the EEO process. Your union can provide more information.

Second, some complaints of discrimination, harassment, or retaliation can be pursued through the Merit Systems Protection Board (MSPB). These are referred to as “mixed cases” because they mix issues within the jurisdiction of both the EEOC and MSPB. The EEOC provides more information on mixed cases here.

4. Resources for more detailed information

• EEOC website

[Image from Flickr user Alves Family.]