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THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
There
are three federal statutes that regulate employment discrimination
in this country for most Americans.
The
first statute is known as Title VII of the Civil Rights Act of 1964,
as amended. Title VII prohibits discrimination on the basis of race,
sex, national origin, and religion. The Act also has a powerful
anti-retaliation provision for employees who oppose discriminatory
practices. Title VII applies to employers with 15 or more employees
and also governmental employers. If you work for an employer with
less than 15 employees, it is important that you consult with an
attorney to determine whether a state statute applies in your situation.
Another
major federal anti-discrimination statute is the Age Discrimination
in Employment Act. The ADEA protects employees 40 years and over.
The ADEA applies to employers with over 20 employees and also to
governmental employers. If your private employer does not have at
least 20 employees, be sure to check with a local attorney to determine
if a state statute applies in your situation.
The
final major piece of federal anti-discrimination legislation is
known as the Americans with Disabilities Act. This statute applies
to private employers with 15 or more employees as well as governmental
employers. If your employer does not have at least 15 employees,
consult with a local attorney to determine if a state statute applies
in your situation.
The
federal agency responsible for enforcing these employment statues
is the Equal Employment Opportunity Commission. If you believe you
have been discriminated against in violation of any of these three
federal statutes, and your employer has the requisite number of
employees, you must initiate your proceedings through the EEOC before
you can institute any proceeding in court.
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1. What
To Know Before You File Your EEOC Charge
Here
are some questions to consider before filing your EEOC charge:
• What
is my protected class? In other words, can you identify the
protected status in which you believe you are being discriminated?
Remember that with reverse discrimination virtually anybody
has a potential discrimination case if they can show that they
were discriminated against because of their protected
status, and not merely that they are a member of a protected
class.
• Are
you qualified for the position for which you claim you have
been discriminated against?
• What
adverse action did you suffer? Virtually any area of employment
can be considered an adverse action ranging from hiring, failure
to promote, demotions, failure to train, pay, and, of course,
terminations.
• How
have employees in the non-protected class been treated? This
question seeks to flush out the claim of discrimination based
on your protected status. For example, if your are fired and
you claim it's because of your age, but the person hired to
replace you is older than you, you're going to have a difficult
time showing that your termination was because of your age.
It
is imperative to understand that you have a short time frame (180
to 300 days depending on the state) in which to file what is known
as a charge of discrimination with the Equal Employment Opportunity
Commission. Be aware that notice of an adverse action triggers
the statute of limitations. For example, if you are notified in
January that you are going to be laid-off in July, the statute of
limitation begins to run with your notification in January. Failure
to file a timely EEOC charge will result in your claim being barred
by the statute of limitations. To be absolutely safe, whenever possible,
file your EEOC charge within 180 days from the time that you are
notified of the adverse action.
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2. What
To Do Once Your EEOC Charge Has Been Filed
It
is important to understand that the EEOC is currently back logged
with thousands of unaddressed worker complaints. To deal with this
tremendous back log the EEOC will begin channelling cases to one
of three "tracks." Track A will be for cases where there
is reasonable cause to believe a violation has occurred. Track B
is for cases that require more investigation. Track C is for cases
that the EEOC investigators believe do not have reasonable cause
to go forward.
This
track system obviously means a lot to you as a charging party at
the EEOC. To state the obvious, your goal is to be placed on Track
A and to avoid being placed on Track C. Track C complaints will
be immediately dismissed without further investigation.
To
make sure you do not mistakenly end up on Track C, prepare carefully
for your initial meeting with the EEOC investigator. The agency
is relying on you to participate and provide them with as much relevant
information as possible (e.g. witnesses and documents) so that they
can channel the case to the correct Track.
As
a result, investigate your case prior to meeting with the EEOC,
if possible. Then, show up at the initial meeting with affidavits
from witnesses, statistics and anything else that you believe will
persuade the investigator that your case should be placed on Track
A. At a minimum, you want to be placed on Track B so that a further,
more detailed investigation will occur.
After
the EEOC receives your charge of discrimination and all relevant
information that you have provided to it, the commission will typically
require the employer to provide it with what is known as a "Position
Statement." Your goal is to make every attempt to review the
Position Statement once it comes in to the EEOC, so you can show
the commission how it is factually incorrect and is actually a pretext
for a hidden motive, discrimination. The EEOC now allows workers
to provide an immediate reply to the employer's Position Statement.
It is imperative that you make every effort towards seeing and replying
to the employer's EEOC Position Statement. You may want to retain
an employment attorney to assist you in this process because anything
you say in your reply, (to borrow a phrase) "can and will be
used against you" by the employer.
Another
change underway at the EEOC concerns a plan calling for voluntary
mediation. The idea is to promote settlement when the parties are
willing to engage in voluntary mediation. Generally, participation
in voluntary mediation is a good idea. Again, this may be a time
where you may want to retain an employment attorney to assist you
in getting the best deal possible.
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3.
What to do after your charge leaves the EEOC
If
you leave your charge in the EEOC for a determination, the EEOC
is either going to rule that there is cause to believe that you
were discriminated against or that there is no probable cause to
believe that you were discriminated against. In either event, it
is important to understand what happens at this point.
If
the EEOC finds in your favor, the agency will provide you with a
determination of probable cause. At that point, the EEOC will require
you and the company (known as the "Respondent") to engage in mandatory
conciliation to see if you can settle the matter short of litigation.
If you are unable to resolve the case through conciliation, the
agency will either offer to represent you in court, or it will provide
you with a Right to Sue letter. It is critical to understand that
you have 90 days from the date that you receive the Right
to Sue letter to file your Complaint in court. If the agency has
not agreed to provide you with representation, you will need to
seek an attorney. However, if you receive a finding of probable
cause from the EEOC, you should have no difficulty finding a competent
employment attorney that is willing to litigate the case on your
behalf. The EEOC finds discrimination in only a relatively handful
of cases.
If
the EEOC does not find in your favor, but instead finds no probable
cause to believe that you were discriminated or retaliated against,
you will still be issued a determination with a Right to Sue letter.
Again, it is critical to understand that you will have 90 days
from the date that you receive the Right to Sue letter in which
to file your complaint in court. The EEOC will not offer conciliation
if it has not found probable cause in your favor and it will not
offer to represent you in court. You must either find an attorney
who is willing to represent you, ask the Court to help you find
a lawyer if you cannot afford one, or in a rare case file the complaint
on your own. (I do not recommend this because of the complexities
of these cases).
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Benezra & Culver L.L.C.