Federal Employees in New York: The 45-Day EEO Counselor Rule

If you work for a federal agency in New York, or applied to one, your discrimination claim does not start with the usual EEOC charge. Under federal law you must initiate contact with an Equal Employment Opportunity (EEO) Counselor at the agency within 45 days of the matter alleged to be discriminatory or, for a personnel action, within 45 days of its effective date.⁠^[1] By comparison, the EEOC's New York District Office gives 300 days for a charge against an employer with 15 or more employees.⁠^[8]

This page explains why federal workers have their own process, each step and its time limit, and the points in the regulation that are easy to miss. It covers only the federal-sector process. For every other time limit, see the master table of deadlines.

Why do federal employees have a separate process?

Because the general federal statutes leave the federal government out of their definition of "employer" and cover it in separate sections. Title VII's definition of "employer" excludes the United States.⁠^[9] A separate section of Title VII requires that personnel actions affecting employees and applicants in military departments, executive agencies, the United States Postal Service and certain other federal units be free from discrimination based on race, color, religion, sex or national origin.⁠^[10]

Age and disability follow the same pattern under federal law:

• Age. A separate section of the Age Discrimination in Employment Act (ADEA) requires that personnel actions affecting federal employees and applicants who are at least 40 years of age be free from discrimination based on age.⁠^[11]
• Disability. The ADA's definition of "employer" does not include the United States.⁠^[12] Federal employment is covered by section 501 of the Rehabilitation Act, which applies the standards of ADA Title I to complaints of nonaffirmative action employment discrimination.⁠^[13] For those complaints, the remedies, procedures and rights of Title VII's federal-sector section are available.⁠^[14]
• Retaliation. The EEOC says federal law also protects federal employees and applicants from retaliation for opposing employment discrimination, filing a complaint, or participating in the EEO complaint process, even if the complaint is not theirs.⁠^[2]

The EEOC's federal-sector regulation, 29 C.F.R. Part 1614, sets the procedure. It applies to people who believe a federal agency discriminated on the basis of race, color, religion, sex, national origin, age, disability, genetic information, or pregnancy, childbirth or related medical conditions, and it says they must consult a Counselor before filing a complaint.⁠^[15]

What exactly is the 45-day rule?

Under 29 C.F.R. § 1614.105(a)(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 personnel action, within 45 days of the effective date of the action."⁠^[1] The EEOC describes the first step as contacting an EEO Counselor at the agency where you work or where you applied for a job.⁠^[2]

Three details about the count:

• Personnel actions. For a personnel action, the 45 days run from the effective date of the action.⁠^[1]
• Resignations. In a constructive discharge claim, the Supreme Court held that the 45-day period begins to run when the employee gives notice of resignation, not on the resignation's effective date.⁠^[16][17] See constructive discharge.
• Extensions. The agency or the EEOC must extend the 45-day limit when the person shows that he or she was not notified of the time limits and was not otherwise aware of them, did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, was prevented by circumstances beyond his or her control despite due diligence, or for other reasons the agency or the EEOC considers sufficient.⁠^[5]

The extension grounds are exceptions that the person has to show.⁠^[5] Treat 45 days as the working limit.

What happens after I contact the Counselor?

1. Counseling or ADR. The EEOC says that in most cases the Counselor offers a choice between EEO counseling and an alternative dispute resolution (ADR) program such as mediation.⁠^[2] The Counselor must hold the final interview within 30 days of the date you contacted the agency's EEO office; the period can be extended by written agreement for no more than 60 additional days, and it is 90 days if you choose ADR.⁠^[18]
2. Notice of right to file. If the matter is not resolved, the Counselor must tell you in writing of the right to file a discrimination complaint within 15 days of receiving the notice.⁠^[18]
3. Formal complaint. The complaint must be filed within 15 days of receiving that notice.⁠^[3] It is filed with the agency that allegedly discriminated, and it must contain a signed statement from you or your attorney that identifies you and the agency and describes generally the actions or practices complained of.⁠^[4]
4. Investigation. The agency is required to conduct an impartial and appropriate investigation within 180 days of the filing of the complaint, unless the parties agree in writing to extend the period; if the complaint has been amended, the limit is the earlier of 180 days after the last amendment or 360 days after the original complaint.⁠^[4][6]
5. Hearing or agency decision. The EEOC says that when the investigation is finished, the agency gives you two choices: request a hearing before an EEOC Administrative Judge, or ask the agency to issue a decision. A hearing has to be requested within 30 days from the day you receive the agency's notice about hearing rights.⁠^[2]
6. Final order and appeal. After an Administrative Judge's decision, the EEOC says the agency has 40 days to issue a final order, and an appeal to the EEOC's Office of Federal Operations has to be filed no later than 30 days after you receive the final order.⁠^[2]
7. Lawsuit. A civil action may be filed in a United States District Court within 90 days of receiving the agency's final action or the EEOC's final decision on appeal, or after 180 days from filing the complaint or the appeal if no final action or decision has issued.⁠^[6][7] The head of the department or agency is the defendant.⁠^[19]

How does this compare with the process for other workers?

Step	Federal employees and applicants	Private-sector workers in New York (federal claims)
First contact	EEO Counselor at the agency, within 45 days.⁠[1]	EEOC charge within 300 days of the alleged harm.⁠[8]
Formal filing	Complaint filed with the agency itself within 15 days of the Counselor's notice.⁠[3][4]	The charge is the formal filing; it is made with the EEOC.⁠[20]
Who investigates	The employing agency, within 180 days of the complaint.⁠[4]	Covered in the guide on filing an EEOC charge.
Time to sue	Within 90 days of receiving final action or the EEOC's appeal decision, or after 180 days from filing the complaint or appeal without one.⁠[7][6]	Within 90 days after the EEOC's notice of right to sue.⁠[21]

The private-sector process is covered in how to file an EEOC charge in New York. State and local government employees are not federal employees for this purpose; their rules are in notice-of-claim rules for public employees.

Is there a different route for age discrimination?

Yes, under federal law. A federal employee aggrieved by age discrimination may bring a civil action in federal district court, and a person who has not filed an age complaint with the EEOC may sue after giving the EEOC at least 30 days' notice of an intent to sue; that notice must be filed within 180 days after the alleged unlawful practice.⁠^[22] The Counselor is required to tell you in writing about the right to file a notice of intent to sue and a lawsuit under the ADEA instead of an administrative age complaint.⁠^[22]

What should I raise with the Counselor?

Everything you may later want in the complaint. The regulation requires the Counselor to advise you in writing that only the claims raised in pre-complaint counseling, or issues or claims like or related to them, may be alleged in a later complaint filed with the agency.⁠^[23] A complaint may be amended at any time before the investigation ends, but only to add issues or claims like or related to those already raised, so a full account at the start matters.⁠^[4]

Two protections apply at this stage under the same regulation. The Counselor may not try in any way to restrain you from filing a complaint.⁠^[23] And the Counselor may not reveal your identity unless you authorize it, or until the agency has received a discrimination complaint from you about the same matter.⁠^[23]

What can a federal employee recover?

Under federal law, the 1991 damages statute applies to actions under Title VII's federal-sector section: a complaining party who proves intentional discrimination may recover compensatory damages as that statute allows, in addition to Title VII's equitable relief.⁠^[24] Punitive damages cannot be recovered against a government or government agency.⁠^[25] The general federal remedies are explained in damages in a New York employment case and federal damages caps.

What about New York State and City law?

This page does not address whether any claim under the State or City human rights laws can be brought against a federal agency. The other guides in this library describe the State Division of Human Rights and the NYC Commission on Human Rights as they apply to private, state and local employers. Nothing in those guides should be read as extending the 45-day federal limit for a claim against a federal agency.⁠^[1]

Which points are easy to miss?

• Counting 300 days instead of 45. The 300-day figure belongs to the EEOC charge process for other employers.⁠^[8] The federal-sector limit is 45 days.⁠^[1]
• Missing the 15 days. After counseling ends, the formal complaint is due within 15 days of receiving the notice of the right to file.⁠^[3]
• Leaving a claim out of counseling. Only claims raised in counseling, or like or related claims, may be alleged in the later complaint.⁠^[23]
• Waiting for something else to finish. The 45 days are counted from the matter alleged to be discriminatory or the effective date of the personnel action, and the grounds for extending them are the ones the regulation lists.⁠^[1][5]

Practical steps

The EEOC says each agency is required to post information about how to contact its EEO office.⁠^[2] Make the first contact in a way that leaves a record, such as an email, so the date can be shown later. Keep a copy of every notice you receive and write the date you received it on the copy, because the 15-day and 90-day periods are counted from receipt.⁠^[3] If you are in a bargaining unit, read union members, grievances and discrimination claims as well. If a date may already have passed, see missed a deadline? and read the extension grounds above closely.