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By Debra Roth

Q & A Session: Including Prior Acts of Harassment in EEO Complaint Alleging Hostile Work Environment

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Q:

Can I include prior acts of harassment in my EEO complaint alleging a hostile work environment?

A:

According to 29 CFR § 1614.105(a)(1), complaints of discrimination should be brought to the attention of the EEO counselor within 45 days of the date of the matter alleged to be discriminatory, or with respect to personnel actions, within 45 days of the action ‘s effective date.

The U.S. Supreme Court has held that an individual alleging a hostile work environment will not be time-barred if all acts constituting the claim are part of the same unlawful practice, and at least one act falls within the filing period.  See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).  In other words, you may use events that occurred more than forty-five (45) calendar days prior to your initiation of the EEO process to prove your hostile work environment claim, so long as your claim is timely (i.e. the days between the latest discriminatory event and your contact with the EEO office is within a 45 day period).

However, if you prevail on your hostile work environment claim, you are only entitled to legal relief for the specific acts that occurred within forty-five calendar days of your initiation of the EEO process.  For example, if an employee is not selected for a competed promotion in three consecutive years, and then that employee files a timely hostile work environment claim within forty-five (45) calendar days of the third non-selection, the employee may use the first two non-selections to prove his/her hostile work environment claim, but the employee, if he/she prevails, would only be entitled to a legal remedy for the third non-selection which occurred within forty-five calendar days of the date he/she initiated the EEO process.

This response is written by Christopher J. Keeven, associate attorney of Shaw Bransford & Roth PC, a federal employment law firm.

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