(a) Aggrieved persons who believe they have been discriminated
against on the basis of race, color, religion, sex, national origin,
age, disability, or genetic information must consult a counselor prior
to filing a complaint in order to try to informally resolve the matter.
(1) An aggrieved person must initiate
contact with a counselor within 45 days of the date of the matter
alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action.
(2) The Board or the Commission shall extend
the 45-day time limit in paragraph (a)(1) of this section when the
individual shows that he or she was not notified of the time limits
and was not otherwise aware of them, that he or she did not know and
reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he or she was
prevented by circumstances beyond his or her control from contacting
the counselor within the time limits, or for other reasons considered
sufficient by the Board or the Commission.
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(b) (1) At the initial counseling
session, counselors must advise individuals in writing of their rights
and responsibilities, including the right to request a hearing or
an immediate final decision after an investigation by the Board in
accordance with section 268.107(f), election rights pursuant to section
268.302, the right to file a notice of intent to sue pursuant to section
268.201(a) and a lawsuit under the ADEA instead of an administrative
complaint of age discrimination under this part, the duty to mitigate
damages, administrative and court time frames, and that only the claims
raised in precomplaint counseling (or issues or claims like or related
to issues or claims raised in precomplaint counseling) may be alleged
in a subsequent complaint filed with the Board. Counselors must advise
individuals of their duty to keep the Board and the Commission informed
of their current address and to serve copies of appeal papers on the
Board. The notice required by paragraphs (d) or (e) of this section
shall include a notice of the right to file a class complaint. If
the aggrieved person informs the counselor that he or she wishes to
file a class complaint, the counselor shall explain the class complaint
procedures and the responsibilities of a class agent.
(2) Counselors shall advise aggrieved persons
that, where the Board agrees to offer ADR in the particular case,
they may choose between participation in the alternative dispute-resolution
program and the counseling activities provided for in paragraph (c)
of this section.
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(c) Counselors shall conduct
counseling activities in accordance with instructions contained in
Commission management directives. When advised that a complaint has
been filed by an aggrieved person, the counselor shall submit a written
report within 15 days to the EEO programs director and the aggrieved
person concerning the issues discussed and actions taken during counseling.
(d) Unless the aggrieved person agrees to a longer counseling
period under paragraph (e) of this section, or the aggrieved person
chooses an alternative dispute resolution procedure in accordance
with paragraph (b)(2) of this section, the counselor shall conduct
the final interview with the aggrieved person within 30 days of the
date the aggrieved person contacted the Board’s Office of Diversity
and Inclusion to request counseling. If the matter has not been resolved,
the aggrieved person shall be informed in writing by the counselor,
not later than the thirtieth day after contacting the counselor, of
the right to file a discrimination complaint with the Board. This
notice shall inform the complainant of the right to file a discrimination
complaint within 15 days of receipt of the notice, of the appropriate
official with whom to file a complaint, and of the complainant’s duty
to assure that the Programs Director is informed immediately if the
complainant retains counsel or a representative.
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(e) Prior to
the end of the 30-day period, the aggrieved person may agree in writing
with the Board to postpone the final interview and extend the counseling
period for an additional period of no more than 60 days. If the matter has not been
resolved before the conclusion of the agreed extension, the notice
described in paragraph (d) of this section shall be issued.
(f) Where the aggrieved person chooses to participate in an alternative
dispute-resolution procedure in accordance with paragraph (b)(2) of
this section, the precomplaint processing period shall be 90 days.
If the claim has not been resolved before the ninetieth day, the notice
described in paragraph (d) of this section shall be issued.
(g) The counselor shall not attempt in any way to restrain the aggrieved
person from filing a complaint. The counselor shall not reveal the
identity of an aggrieved person who consulted the counselor, except
when authorized to do so by the aggrieved person, or until the Board
has received a discrimination complaint under this part from that
person involving the same matter.
