81. Processing Allegations of Discrimination or Harassment Because of Sexual Orientation—Precomplaint Counseling

All 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 201A, within the same time limit as those filed on any of the bases covered by EEOC complaint processing regulations.

[cited in USAM 3-5.211]