Manual for Processing Discrimination Complaints
Part II, Section A, Chapter 10
CLASS COMPLAINTS

This chapter covers the processing of class complaints. EEOC regulations on processing of class complaints are at 29 C.F.R. § 1614.204. With the exception of Equal Pay Act (EPA) and Age Discrimination in Employment Act (ADEA) issues, allegations of class-wide discrimination must be raised in the administrative process before filing a civil action

A class is a group of employees or applicants who allege that they have been affected adversely by a Department policy or practice that discriminates against them because of their common race, color, sex, religion, national origin, age (40 and over), or disability.

A class complaint is a written complaint filed by the agent for the class. An agent or class agent is a member of the class who acts for the class during the processing of the class complaint. A class may have a representative who may or may not be an attorney.

Requirements for a class complaint

To be accepted for processing, the complaint must meet four criteria:

1. The class must be so numerous that consolidation of members' complaints would be impractical.
2. There must be questions of fact common to the class.
3. The agent's claim must be typical of the claims of the class.
4. The agent or class representative must show that s/he is able to fairly and adequately protect the interests of the class.

EEO Counseling

Class agents must complete EEO counseling. Agents are subject to the same time frames and other procedural requirements as persons seeking counseling on an individual EEO complaint. However, if a complainant is not aware of the class implications of his/her claim during counseling, s/he may request class certification at any reasonable point in the EEO process without going through EEO counseling again. A "reasonable point in the process" means when a complainant knows or suspects that the complaint has class implications, that is, it potentially involves questions of law or fact common to a class and is typical of the claims of a class. Normally this point will be no later than the end of discovery at the hearing stage.

The EEO Counselor must advise the agent of his/her rights and responsibilities, and should explain the differences between class and individual complaints processing. If the complaint is not resolved through EEO Counseling, the Counselor must issue the agent a Notice of Right to File within 15 days a formal complaint. If a complainant moves for class certification after completing counseling, it will be the responsibility of the Department, or the EEOC AJ assigned to the case, to ensure that the class agent is advised of his/her obligations.

Formal Complaint Process

Filing a class complaint. The formal class complaint must be in writing and must be signed by the agent or the representative. The formal complaint must identify the policy or practice adversely affecting the class and the specific matter affecting the agent. The complaint must be filed within 15 calendar days of the agent's receipt of the Notice of Right to File within 15 days a formal complaint. The complaint may be filed with the same officials who receive individual complaints of discrimination and timeliness is determined in the same manner as individual complaints.

Intake. Within 30 days of receipt of a formal class complaint, the Department shall designate an agency representative and shall forward the complaint file, including the Counselor’s Report and all other relevant information, to the EEOC. The EEOC shall assign an AJ.

The AJ will perform the following functions:

• determine whether the class complaint meets the four criteria listed above. This is called certification of the class.
• give the agent an opportunity to address matters raised by the class that are not in the Counselor's Report.
• issue a decision on whether the complaint meets the procedural requirements for further processing.

Allegations that are not sufficiently specific or detailed to be processed. EEOC regulations require that an AJ allow a class agent 15 days in which to provide specific and detailed information when an allegations lacks specificity or detail. 29 C.F.R. Section 1614.20(d)(4).

Dismissal of class complaints. The AJ may dismiss class complaints for any ground applicable to individual complaints, or because the complaint does not meet all of the four criteria listed above, or because of the agent's failure to respond to the AJ's requests for further information.

Department's Final Order. Within forty days from receipt of the AJ's decision on class certification, the Director of OCR shall issue a final order. If the final order does not fully implement the AJ's decision on class certification, the Department will simultaneously appeal the decision to the EEOC.

Disposition of the class agent's complaint upon dismissal of the class complaint. A FAD dismissing a class complaint must notify the agent either that the class complaint is being filed on that date as an individual complaint and accepted for further processing or that the complaint is also dismissed as an individual complaint. The FAD must also include a notice of the agent's appeal rights and right to file a civil action.

Individual complaints filed by class members. If a class agent or other class member raises issues identical to those raised in the class complaint, the individual complaints will be held in abeyance pending an AJ's decision on certification of the class. If the class is certified, the individual complaints will be subsumed into the class complaint. If the class is not certified, the Department will resume processing the individual complaints.

Notification of the Class

Within 15 days of receipt of an AJ's decision certifying a class complaint, the Department shall notify all members of the class of the acceptance. Notification shall be made by means reasonably calculated to reach all members of the class. The notice must contain:

• the name of the Department, the name and location of the operating unit and the date of acceptance;
• a definition of the class and a statement of the accepted issue(s);
• an explanation of the binding nature of the final decision or resolution on the class members; and
• the name, address and telephone number of the class representative.

Obtaining Evidence About the Complaint. Once a case is accepted, the AJ will notify the parties that they will be allowed at least 60 days to prepare their cases. Evidence may be developed through interrogatories, depositions, requests for admissions, stipulations or production of documents. If mutual cooperation fails, either party may ask the AJ to rule on a request to develop evidence. During the period for development of evidence, the AJ may direct that an investigation of the facts be conducted by an agency certified by the EEOC.

Failure to respond to a request to develop evidence. If a party fails, without showing good cause, to respond to an AJ’s ruling on a request for information, documents, or admissions, the AJ may:

• draw an adverse inference against the noncompliant party, i.e., consider the matter to be established in favor of the opposing party;
• exclude other evidence offered by the noncompliant party;
• recommend that a decision be rendered in favor of the opposing party; or
• take such other action as s/he deems appropriate.

Hearing. After the period allowed for developing evidence, the AJ will set a date for the hearing. Hearings on class complaints are conducted in accordance with EEOC regulations at 29 C.F.R. Section 1614.109.

The EEO Officer shall arrange for a court reporting service to prepare a verbatim transcript of the hearing.

Following the hearing, the AJ shall transmit to the Department the transcript of the hearing and a report of findings of fact and recommendations, including systemic relief for the class and individual relief where appropriate.

Final Agency Decision. Within 60 days of receipt of the AJ’s report of findings and recommendations, the Department shall issue a FAD. The FAD is binding on all members of the class. The Department may adopt or modify the AJ’s findings and recommendations or reject them and issue a decision with its own findings and conclusions. The FAD shall be in writing and shall be transmitted to the agent by certified mail, return receipt requested, along with a copy of the AJ’s report of findings and recommendations. A FAD rejecting or modifying an AJ’s finding and recommendations must contain specific reasons for the Department’s action.

If the Department does not issue a FAD within 60 days, the AJ’s findings and recommendations become the Department’s final decision. The Department shall transmit the FAD to the agent within 5 days of the expiration of the 60 day period. The FAD must contain a notice of the right to appeal or file a civil action.

FADs finding discrimination. A FAD finding discrimination shall include the date of the agent’s initial contact with the EEO Counselor and the date the Department eliminated the policy or practice giving rise to the complaint.

When discrimination is found, the Department shall eliminate the discriminatory policy or practice. Where appropriate, individual relief, including costs and attorney’s fees if appropriate, shall be provided to the agent. The FAD shall order the bureau to provide any relief authorized by law and determined to be necessary or desirable to resolve the discrimination and promote the policy of equal opportunity. Awards of attorney’s fees for prevailing class complainants will be processed in accordance with 29 C.F.R. Sections 1614.501(e)(1) and (2).

Notification of FAD. Within 10 days of its transmittal of the FAD to the agent, the Department shall notify class members of the decision and relief awarded, if any, through the same method used to give notice of the existence of the class complaint. The notice, where appropriate, shall include information concerning the rights of class member to seek individual relief and the procedures to be followed.

Relief for individual class members. When discrimination is found, there is a presumption of discrimination as to every individual who can show that s/he is a member of the class and was affected by the discrimination during the relevant period of time. The agency must prove by clear and convincing evidence that a class member is not entitled to relief.

A class member who believes that s/he is entitled to individual relief must file a claim with the Director of OCR, within 30 days of notification of the FAD. The claim must:

• be specific; and
• show that the claimant is a class member who was affected by the discriminatory policy or practice during the period of time for which class-wide discrimination was found.

The Department shall issue a FAD on each claim for individual relief within 90 days of the date the claim was filed. The FAD must include a notice of right to appeal or to file a civil action.

If the Department intends to dispute an individual claim, it must notify the AJ, in writing, within sixty days of receipt of the claim. The AJ will toll the 90 day period for issuing a FAD and may hold a hearing on the claim or may otherwise supplement the record. At the conclusion of any fact finding, the AJ will issue a decision on the individual claim and forward it to the Department and to the individual.

Upon receipt of the AJ’s decision, the 90 day period for issuing a FAD will resume. The Department must issue a FAD regarding the individual claim within the resumed 90 day period. The FAD must include a notice of right to appeal or to file a civil action. If the Department does not issue a FAD, the AJ’s decision will become the final decision of the Department.

When class-wide discrimination is not found, but it is found that the agent or any other class member is the victim of discrimination, the agent or other class member shall be awarded individual relief under 29 C.F.R. Section 1614.501.

Resolution of Class Complainants. The complaint may be resolved by agreement of the agency and the class agent at any time. Notice of the resolution must be provided to the AJ. Class members must also be notified using the same manner as notification of the acceptance of the class complaint. The notice must state the relief, if any, to be granted by the agency and the name and address of the AJ assigned to the case. The notice must also state that within 30 days of the date of the notice of resolution, any member of the class may petition the AJ to vacate the resolution because it benefits only the class agent, or is otherwise not fair, adequate and reasonable to the class as a whole.

The AJ will review the resolution and consider any petitions to vacate it that are filed. The AJ will evaluate the agreement in relation to the strength of the class agent’s case, and should not reject a settlement merely because individual class members contend they would have received more had they prevailed at trial. If the AJ finds that the proposed resolution is not fair, adequate and reasonable to the class as a whole, the AJ will issue a decision vacating the agreement. If the AJ finds that the resolution is fair, adequate and reasonable to the class as a whole, the resolution will be binding on all members of the class.

Appeals and Requests for Reconsideration

An agent may appeal:

• an AJ’s decision accepting or dismissing all or part of a class complaint;
• a FAD addressing the resolution of a complaint on the merits of a complaint;
• and an AJ’s decision to vacate a proposed resolution of a compliant on the grounds that it is not fair, adequate, and reasonable to the class as a whole.

A class member other than the agent may appeal:

• an AJ’s decision that a proposed resolution is not fair, adequate, and reasonable to the class as a whole;
• an AJ’s decision finding a proposed resolution fair, adequate, and reasonable to the class as a whole if the class member filed a petition to vacate the resolution;
• an AJ’s finding that the petitioner is not a member of the class and did not have standing to challenge the resolution;
• and a FAD on a claim for individual relief under a class complaint.

Appeals and requests for reconsideration must be filed with the EEOC’s OFO and must be processed in accordance with 29 C.F.R. §§ 1614.402 through 1614.407. See Chapter 5 for more information on the appeal process.

Civil Actions

An agent who has filed a class complaint or a class member who has filed a claim for individual relief may file a civil action under Title VII, the ADEA or the Rehabilitation Act in an appropriate United States district court:

• within 90 days of a FAD, if no appeal has been filed;
• after 180 days from the date the class complaint was filed, if no FAD has been issued and no appeal filed;
• within 90 days of receipt of the EEOC’s decision on appeal; or
• after 180 days from the date of filing an appeal, if the EEOC has not issued a decision on the appeal.

Filing a civil action within the applicable time frame terminates administrative processing of the complaint.

As an alternative to filing an administrative complaint, an agent bringing a class complaint under the ADEA may file a civil action in a United States district court after giving the EEOC not less than 30 days notice of the intent to file such an action. Such notice must be filed with the EEOC's Federal Sector Program Office within 180 days of the occurrence of the alleged unlawful practice.

Where violation of the EPA is alleged, an agent may file a civil action with a court of competent jurisdiction within two years, or if the violation is willful, within three years, of the date of the alleged violation, regardless of whether an administrative complaint has been filed. Filing an administrative complaint does not toll the time for filing a civil action.

Freedom from Retaliation

Agents, class members, representatives, witnesses and Department officials shall be free from reprisal, restraint, coercion and interference at all stages in the presentation and processing of a class complaint. They shall have the right to pursue individual complaints based on reprisal for their role in the class complaint.

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