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Last revision: August 21, 1995
§1614.501 Remedies and relief.
(a) When an agency, or the Commission, in an individual case of
discrimination, finds that an applicant or an employee has been
discriminated against, the agency shall provide full relief, as
explained in appendix A of part 1613 of this chapter, which shall
include the following elements in appropriate circumstances:
(1) Notification to all employees of the agency in the affected
facility of their right to be free of unlawful discrimination and
assurance that the particular types of discrimination found will not
(2) Commitment that corrective, curative or preventive action will
be taken, or measures adopted, to ensure that violations of the law
similar to those found will not recur;
(3) An unconditional offer to each identified victim of
discrimination of placement in the position the person would have
occupied but for the discrimination suffered by that person, or a
substantially equivalent position;
(4) Payment to each identified victim of discrimination on a make
whole basis for any loss of earnings the person may have suffered as a
result of the discrimination; and
(5) Commitment that the agency shall cease from engaging in the
specific unlawful employment practice found in the case.
(b) Relief for an applicant. (1) (i) When an agency, or the
Commission, finds that an applicant for employment has been
discriminated against, the agency shall offer the applicant the
position that the applicant would have occupied absent discrimination
or, if justified by the circumstances, a substantially equivalent
position unless clear and convincing evidence indicates that the
applicant would not have been selected even absent the discrimination.
The offer shall be made in writing. The individual shall have 15
days from receipt of the offer within which to accept or decline the
offer. Failure to accept the offer within the 15-day period will be
considered a declination of the offer, unless the individual can show
that circumstances beyond his or her control prevented a response
within the time limit.
(ii) If the offer is accepted, appointment shall be retroactive to
the date the applicant would have been hired. Back pay, computed in
the manner prescribed by 5 CFR 550.805, shall be awarded from the date
the individual would have entered on duty until the date the
individual actually enters on duty unless clear and convincing
evidence indicates that the applicant would not have been selected
even absent discrimination. Interest on back pay shall be included in
the back pay computation where sovereign immunity has been waived.
The individual shall be deemed to have performed service for the
agency during this period for all purposes except for meeting service
requirements for completion of a required probationary or trial
(iii) If the offer of employment is declined, the agency shall
award the individual a sum equal to the back pay he or she would have
received, computed in the manner prescribed by 5 CFR 550.805, from the
date he or she would have been appointed until the date the offer was
declined, subject to the limitation of paragraph (b)(3) of this
section. Interest on back pay shall be included in the back pay
computation. The agency shall inform the applicant, in its offer of
employment, of the right to this award in the event the offer is
(2) When an agency, or the Commission, finds that discrimination
existed at the time the applicant was considered for employment but
also finds by clear and convincing evidence that the applicant would
not have been hired even absent discrimination, the agency shall
nevertheless take all steps necessary to eliminate the discriminatory
practice and ensure it does not recur.
(3) Back pay under this paragraph (b) for complaints under title
VII or the Rehabilitation Act may not extend from a date earlier than
two years prior to the date on which the complaint was initially filed
by the applicant.
(c) Relief for an employee. When an agency, or the Commission,
finds that an employee of the agency was discriminated against, the
agency shall provide relief, which shall include, but need not be
limited to, one or more of the following actions:
(1) Nondiscriminatory placement, with back pay computed in the
manner prescribed by 5 CFR 550.805, unless clear and convincing
evidence contained in the record demonstrates that the personnel
action would have been taken even absent the discrimination. Interest
on back pay shall be included in the back pay computation where
sovereign immunity has been waived. The back pay liability under
title VII or the Rehabilitation Act is limited to two years prior to
the date the discrimination complaint was filed.
(2) If clear and convincing evidence indicates that, although
discrimination existed at the time the personnel action was taken, the
personnel action would have been taken even absent discrimination, the
agency shall nevertheless eliminate any discriminatory practice and
ensure it does not recur.
(3) Cancellation of an unwarranted personnel action and
restoration of the employee.
(4) Expunction from the agency's records of any adverse materials
relating to the discriminatory employment practice.
(5) Full opportunity to participate in the employee benefit denied
(e.g., training, preferential work assignments, overtime scheduling).
(d) The agency has the burden of proving by a preponderance of the
evidence that the complainant has failed to mitigate his or her
(e) Attorney's fees or costs -- (1) Awards of attorney's fees or
costs. The provisions of this paragraph relating to the award of
attorney's fees or costs shall apply to allegations of discrimination
prohibited by title VII and the Rehabilitation Act. In a notice of
final action or a decision, the agency or Commission may award the
applicant or employee reasonable attorney's fees or costs (including
expert witness fees) incurred in the processing of the complaint.
(i) A finding of discrimination raises a presumption of
entitlement to an award of attorney's fees.
(ii) Any award of attorney's fees or costs shall be paid by the
(iii) Attorney's fees are allowable only for the services of
members of the Bar and law clerks, paralegals or law students under
the supervision of members of the Bar, except that no award is
allowable for the services of any employee of the Federal Government.
(iv) Attorney's fees shall be paid only for services performed
after the filing of a written complaint and after the complainant has
notified the agency that he or she is represented by an attorney,
except that fees allowable for a reasonable period of time prior to
the notification of representation for any services performed in
reaching a determination to represent the complainant. Written
submissions to the agency that are signed by the representative shall
be deemed to constitute notice of representation.
(2) Amount of awards. (i) When the agency or the Commission
awards attorney's fees or costs, the complainant's attorney shall
submit a verified statement of costs and attorney's fees (including
expert witness fees), as appropriate, to the agency within 30 days of
receipt of the decision unless a request for reconsideration is filed.
A statement of attorney's fees shall be accompanied by an affidavit
executed by the attorney of record itemizing the attorney's charges
for legal services and both the verified statement and the
accompanying affidavit shall be made a part of the complaint file.
The amount of attorney's fees or costs to be awarded the complainant
shall be determined by agreement between the complainant, the
complainant's representative and the agency. Such agreement shall
immediately be reduced to writing.
(ii) (A) If the complainant, the representative and the agency
cannot reach an agreement on the amount of attorney's fees or costs
within 20 days of the agency's receipt of the verified statement and
accompanying affidavit, the agency shall issue a decision determining
the amount of attorney's fees or costs due within 30 days of receipt
of the statement and affidavit. The decision shall include a notice
of right to appeal to the EEOC along with EEOC Form 573, Notice of
Appeal/Petititon and shall include the specific reasons for
determining the amount of the award.
(B) The amount of attorney's fees shall be calculated in
accordance with existing case law using the following standards: The
starting point shall be the number of hours reasonably expended
multiplied by a reasonable hourly rate. This amount may be reduced or
increased in consideration of the following factors, although
ordinarily many of these factors are subsumed within the calculation
set forth in this paragraph (e)(2)(ii)(B): The time and labor
required, the novelty and difficulty of the questions, the skill
requisite to perform the legal service properly, the attorney's
preclusion from other employment due to acceptance of the case, the
customary fee, whether the fee is fixed or contingent, time
limitations imposed by the client or the circumstances, the amount
involved and the results obtained, the experience, reputation, and
ability of the attorney, the undesirability of the case, the nature
and length of the professional relationship with the client, and the
awards in similar cases. Only in cases of exceptional success should
any of these factors be used to enhance an award computed by the
formula set forth in this paragraph (e)(2)(ii)(B) .
(C) The costs that may be awarded are those authorized by 28
U.S.C. 1920 to include: Fees of the reporter for all or any of the
stenographic transcript necessarily obtained for use in the case;
fees and disbursements for printing and witnesses; and fees for
exemplification and copies necessarily obtained for use in the case.
(iii) Witness fees shall be awarded in accordance with the
provisions of 28 U.S.C. 1821, except that no award shall be made for a
Federal employee who is in a duty status when made available as a