Issues and Bases
Every discrimination claim/allegation must have two components: Issues and bases.
Issues are the “acts of harm” you suffered at the hand of your managerin discriminatory or retaliatory animus. They are: termination or removal, suspension, denied accommodation, denied selection, etc. Acts of harm are always done by the management officials, actions done toward you, more severely or harshly to you than to others in similarly circumstances.
Bases are the causes or reasons you allege as being a target of the disproportionate “acts of harm” you suffered, such as race, color, national origin, sex, age, disability, prior protected EEO activity. Bases are what you are and what you did (in participating in the prior protected EEO activity). Without invoking a basis of discrimination, you cannot allege unlawful discrimination.
Issues
Issues or claims are the “acts of harm” you suffered at the hands of your management official(s), such as termination/removal, suspension, warning, counseling, poor rating, denied accommodation, denied sick leave, denied annual leave, denied promotion, denied bonus, denied hire, harassment, severe and disproportionate monitoring or scrutiny, and denied terms and conditions of employment (such as FMLA, OWCP benefits, health insurance, lunch break, etc.). The word in noun form, "discrimination" or "retaliation," or in verbal form, ‘I was discriminated against’ or ‘I was retaliated against’ can never be an "issue," “claim,” or an “act of harm,” on its own, despite the plain meaning in English. You cannot claim to be discriminated or retaliated against without specifying the act of harm you suffered and the basis or bases upon which you believe it was discriminatory or retaliatory. Both issues and bases must be specified. Otherwise, you have not alleged unlawful discrimination or retaliation.
EEO investigator and EEOC administrative judge (later) will only investigate or adjudicate the accepted issues or claims, nothing else.
If you did not allege a personnel action as discriminatory with EEO counselor (when you made the ‘initial contact’ with EEO counselor’s office or during the 30-day no extended counseling period), you cannot file or include it later in your formal EEO complaint. EEO investigator and later EEOC administrative judge will not look into any other personnel actions, if not filed with EEO counselor first or with EEO director first (if the complaint was amended). Even further down the road, a federal District Judge will not discuss it either. Therefore, identifying the “acts of harm” in your complaint is very important.
Identifying the issues in your EEO complaint is very important for another reason: remedies you can claim are usually derived from the “acts of harm.” If you are removed, your can seek as remedies immediate reinstatement with lost wages and benefits. If you are rated poorly, you can seek a rating of “Above average” or “Excellent” in your performance evaluation with bonus, if applicable. If you are not selected to a position you sought, you can seek immediate placement in that position or in comparable position with lost wages and benefits in differential (if you are currently employed and the salary of the position you sought was higher). You can seek compensation for deterioration of health and/or for pain and suffering, if you can back up with medical records showing the worsening changes in your medical condition.
Always specify and itemize the remedies you are seeking, when you file a complaint (informally or formally).
Needless to say, each ‘act of harm’ must have a verb. For example, “On May 19, 2022 my supervisor rejected my request for sick leave for the period between May 20, 2022 and May 29, 2022.” Here the claim is: denied sick leave. The following is a badly written complaint: “On May 19, 2022 I went to my supervisor’s office and presented my leave form. He rejected it without providing a reason.” Here, my action (‘I went,’ ‘I presented’) cannot be an act of harm. Such information is not relevant or material. Only the denial of the leave request is relevant and material. In short, do not write a novelette in your EEO complaint. No investigator or judge will have patience to read it.
A claim without identifying an issue is not a claim. A claim without identifying a base is not an EEO claim.
See samples of Complaints for purchase in Store.
Bases
Bases are the protected classes identified in anti-discrimination laws, such as race (African-American,
Caucasian, Asian), color (white, black, dark brown, light brown, etc.), age (40 or older), sex (male, female, pregnancy, transgender, sexual orientation), national origin (Hispanic, Hispanic ancestry, Mexico, Mexican ancestry, Russia, Russian ancestry, Kenya, Kenyan ancestry, China, Chinese ancestry, India, Indian ancestry, Native American, Native American ancestry, etc.), disability (back injury, asthma, PTSD, depression, familial association with someone with disability, etc.), religion (Islam, Christianity, Judaism, Buddhism, atheism, etc.), and Retaliation (prior EEO activities including reasonable accommodation requests, any protest or complaint against discrimination toward co-workers, or providing a statement or testifying on someone else’s EEO case, etc.).
A claim without identifying at ‘issue’ is not a discrimination claim. For example, “I was discriminated against because I am Asian,” is not a valid claim; because “discrimination” must be specified in terms of a personnel action taken based on your protected class(es), as you allege. The claim that “I was suspended because I am Asian,” is a proper claim of discrimination. It contains both “issue” and a “base” or “basis.”
Likewise, a claim without a base is not a valid EEO claim. For example, “I was suspended based on false accusations.” This is not a valid discrimination complaint. Proving accusation to be false is not enough to prove discrimination. You must prove further that you were suspended because of your race, disability, religion, etc.
How do you prove this: that a personnel action was “based” on your protected classes? By presenting direct evidence or circumstantial evidence.
Nowadays, direct evidence of discrimination is hard to come by. No managers will admit, as some used to for example, that you were not hired because of your race, religion, sex, or age (40 or older).
Almost all cases of discrimination are nowadays proven by presenting circumstantial evidence, in which discriminatory intent (animus) are “inferred” based on the comparative treatment of the others who are “similarly situated” as you but are more favorably treated by the same manager(s). Circumstantial evidence, therefore, requires comparative data.
Comparative data must be obtained from the similarly situated individuals against whom you compare yourself to in order to demonstrate your supervisor’s preferential treatment based on the protected classes you invoke in your EEO complaint.
The similarly situated individuals are identified by the similar chain of command, ranking, job title, duties, and responsibilities, etc.). The pool of the similarly situated individuals are shrinking, as the courts have become gradually more conservative or pro business/employer and issues rulings that reflect their political orientation and become precedence.
You must prove pretext: that the stated non-discriminatory business reason is a pretext for discriminatory action. Pretext is proven, again, by examining comparative data and by showing the same manager’s more favorable treatment toward the other “similarly situated individuals” in the same or similar context. If a stated reason for your suspension was that you violated the agency’s smoking policy. This defense can be shown as pretext by demonstrating that others too smoked near the office entrance, even closer than you did, and that they had no prior engagement with EEO activity as you did or that they are White and you are Black.
Samples of EEO Complaints can be found and purchased in Store.