The high cost of “Government Efficiency,” EEO edition
In about five months, EEOC administrative judges are going to start awarding millions of dollars to feds with EEOC complaints just because there’s no one left to investigate them within the 180-day deadline. How’s that for “government efficiency?”
I should explain.
Usually, I post about federal employment law on my LinkedIn page, but because this post exceeds the character limit and needs some links, I decided to post it on my personal blog, which I’ve kept for the last two decades to talk about North Korea (mostly human rights, policy, and sanctions law, but that’s another story).
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Recently, I’ve talked to a lot of feds who felt more vulnerable to workplace discrimination or retaliation in their current workplace climates. Other employees who had reasonable accommodations were concerned about being called back to the office just because Underpresident Musk said so. Some of those worries were fueled by the termination of federal DEIA programs. Other feds are worried because people are seemingly being fired without any reason at all, and wonder if the real reason is an illegal one.
Federal EEO programs come from an Act of Congress–Title VII of the Civil Rights Act of 1964, and regulations implementing the statute. They are not DEIA programs, which come from executive orders. Presidents (are supposed to) come and go, and so do executive orders. President Biden signed one directing agencies to create DEIA programs, and President Trump rescinded it. Regardless of your policy views, that much is legal and (except for its language) normal. His 2025 executive order abolishing agency DEIA programs didn’t try to terminate agency EEO programs and offices, because it couldn’t.
Of course, DOGE has sometimes shown up and just done it anyway, but that appears to be just another example of the anarchy of the times. Had this been part of a well-thought-through grand scheme, DOGE would have RIFfed the EEOC’s administrative judges, or AJs, first. Now, with more federal district court judges across the country issuing temporary restraining orders and injunctions to stop RIFs and mass terminations, it’s harder to get rid of those AJs than it would have been a month or two ago. Meanwhile, EEOC AJs are still deciding discrimination claims and awarding compensation to feds who prevail in their cases.
In normal times, if you believed that your boss had discriminated against you, you’d follow your agency’s EEO process and seek EEO counseling within 45 days of the discriminatory or retaliatory action. If EEO counseling didn’t resolve the complaint, you could file a formal complaint. EEOC regulations require agencies to investigate complaints within 180 days. After you receive the report of investigation, you can ask the agency to decide if you’re entitled to a remedy, or ask the EEOC for a hearing in front of an AJ.
If you chose the latter option, an EEOC AJ would hear your allegation of discrimination or retaliation and decide whether you’re in a protected category or took a protected action, whether the agency took some kind of action against you, whether the direct and circumstantial evidence prove a causal connection between the two, and what damages and other remedies you’re entitled to. Each side could call witnesses, request documents, and present arguments at that hearing.
What if your EEO office was DOGEd? You can and should file your complaint within 45 days anyway. So, for example, if you’re an IRS employee and IRS’s EEO office isn’t functioning, file with the Treasury Department’s EEO Office. If you’re a Forest Service employee, file with USDA’s EEO office, and so on. You can also ask the EEOC’s Office of Federal Operations (federalsectoreeo@eeoc.gov). Be sure to explain that your agency’s EEO office isn’t functioning and ask EEOC where you should file.
And of course, keep records of all of this.
Then try to find a lawyer to represent you. Legally, you don’t absolutely need a lawyer to represent you at the EEOC, but based on my experience, practically, you do. You’ll really want to find a lawyer if not even the EEOC responds, because your next stop will be federal district court. Another reason to talk to a lawyer is that employees involved in workplace disputes often have strong feelings and need realistic, objective advice about their odds of success in court.
That lawyer can’t be me, so please don’t contact me to represent you, but please do share this post with others who might benefit from it. This is just my way of saying that laws should matter, to thank you for your service, and to help you find justice.
What if the agency doesn’t investigate your complaint within 180 days? Most judges will grant the agency at least one continuance before sanctioning the agency, but may not give the agency more time if DOGE’s willful decisions are the reason for the delay. The judge can sanction the agency by excluding evidence, awarding additional attorney fees and costs, or by deciding the entire case in your favor.
That’s just one of many reasons why the Department of Government Efficiency is eventually going to cost the taxpayers so much money.
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Update: a reader and friend points me to a new memo by EEOC’s Acting Chair, stating that judges must stop awarding monetary sanctions, which causes me to wonder–
(1) whether the Acting Chair can make that policy pronouncement without a quorum (there is a nominee for a third EEOC member, which would restore the quorum),
(2) whether AJs will respond by awarding non-monetary relief, like promotions and reinstatement,
(3) at what point federal district courts will disagree, saying justice delayed is justice denied. Federal law directs agencies to comply with EEOC rules and orders, and federal courts clearly have the authority to award a much wider variety of sanctions and forms of relief.
(4) finally, just how easy is could be to get around this memo. It’s based on a 2003 Office of Legal Counsel opinion that clarifies that the EEOC can still award damages and attorney fees if it decides that the complainant is a “prevailing party.” This gives an AJ a loophole to get around the memo–the AJ can sanction the agency by excluding a key piece of evidence, such as the testimony of the supervisor. Without that key evidence, the agency loses the case, and the complainant would still be prevailing party, entitled to monetary damages and attorney fees.