All Department employees, and applicants for employment are entitled to present to an EEO counselor individual concerns that they may have been subjected to discrimination or harassment because of their sexual orientation. Individuals should be informed that their entitlement in this regard derives from Departmental policy and not from Equal Employment Opportunity Commission (EEOC) regulations which govern the processing of discrimination complaints in the Federal sector. In this regard, counselors are responsible for advising employees of relevant distinctions between complaints based on sexual orientation and those processed under EEOC regulations. For example, although complaints based on sexual orientation are processed under the same administrative time frames, they cannot be the subject of either a hearing before an Administrative Judge of the EEOC or an appeal to EEOC. When contacted by such individuals, EEO counselors are responsible for providing them with appropriate counseling, utilizing traditional methods, including use of the Department's Alternative Dispute Resolution Program. Counselors are also responsible for advising employees of, among other things, their right to anonymity (unless waived) during counseling, and their right to representation throughout the complaint process, including the counseling stage. In the event counseling is unsuccessful, complainants should be informed in writing of an entitlement to file a formal complaint with the EEO officer, on DOJ Form 221, within the same time limit as those filed on any of the bases covered by EEOC complaint processing regulations.

2. Formal Complaints of Discrimination

Intake and Investigation. Formal complaints of discrimination or harassment because of sexual orientation should be filed with the EEO officer. The complaint will be reviewed to assure that it meets jurisdictional prerequisites; e.g., timeliness. The complainant will be promptly notified of the acceptance or rejection of the formal complaint. Accepted complaints will be investigated in the same manner as any other allegation of discrimination accepted by the Department. Recommendations to reject a formal complaint based on sexual orientation will be addressed to the Director, EROS who will render a final agency decision as to the dismissability of the complaint. In the event a complaint is received which contains an allegation of discrimination based on sexual orientation and additional bases covered by EEOC regulation, all allegations will be investigated concurrently. However, following the investigation, those allegations not based on sexual orientation will be processed according to existing procedures outlined in 29 CFR 1614. Reports of investigation will be provided to the Departmental Complaint Adjudication Office and to the complainant. The EEO officer will ensure that the investigative report is complete and that management and the complainant are given an opportunity to comment on the file and the representations contained therein.

3. Complaint Adjudication Officer (CAO) Review and Decision

Following a review of the complete record, the CAO will issue a decision which will consist of findings of merits of each issue in the complaint and, when discrimination is found, order appropriate remedies and relief. The CAO shall issue a decision within 60 days of receipt of the record, and shall provide the individual and the component a copy of the decision. The decision of the CAO is final and there is no entitlement for further administrative review.

4. Remedies and Relief

In cases where there is a finding of discrimination, the individual shall be provided with all non-monetary equitable remedies and back pay. Mitigation of damages may be taken into account where appropriate.

A. With respect to applicants, if there is a finding of discrimination, the Department shall offer the applicant, in writing, the position the applicant would have occupied absent discrimination or, if justified by the circumstances, a substantially equivalent position. No such offer shall be made, however, if the record demonstrates by a preponderance of the evidence that the applicant would not have been selected even absent the discrimination. Once an offer is made, the applicant has 30 days to accept the offer, and failure to do so within the specified time period will be considered a declination of the offer unless the individual can show that circumstances beyond his or her control prevented a timely response.

(i) If the offer is accepted, appointment is retroactive to the date the applicant would have been hired. Back pay shall be awarded from the date the individual would have entered on duty until the date-the individual enters on duty. Back pay shall not be awarded if the record demonstrates by a preponderance of the evidence that the individual would not have been selected even absent discrimination.

(ii) If the offer is declined, the individual is entitled to back pay, to the extent and under the conditions specified above.

B. With respect to employees, the Department shall provide all appropriate non-monetary relief, including placement into new position, cancellation of unwarranted personnel action, expungement of adverse materials from Department records, full restoration of employee benefits the individual would have received absent discrimination. The Department shall also provide the employee with back pay, where applicable, from the date the employee would have received higher pay but for the discrimination to the date that the employee actually began receiving higher pay. Provision of back pay and restoration of employee benefits need not be awarded if the investigative record demonstrates, by a preponderance of the evidence, that the employee would not have been in a position to receive higher pay and benefits even absent the discrimination.

C. There is no entitlement to front pay, interest on back pay, attorney fees, compensatory damages, or any monetary relief other than back pay.

D. In appropriate cases, CAD may recommend that the discriminating official or employee be reprimanded or otherwise disciplined.

5. Representation and Official Time

A. At any stage in the processing of a complaint of discrimination or harassment because of sexual orientation, including the counseling stage, the complainant is entitled to be accompanied, represented, and advised by a representative of complainant's choice.

B. If the complainant is a employee of the Department, he or she shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency requests for information. If the complainant is an employee of the Department and designates another employee of the Department as representative, the representative shall similarly have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency requests for information.

C. The agency is not obligated to change work schedules, incur overtime cost=, or pay travel expenses to facilitate the choice of a specific representative or to allow the complainant and representative to confer.