Monday Morning "How-To": Responding to an EEOC Charge
It is Monday morning. You’ve got a hot cup of coffee in your hand, the weekend in the rearview. You get started on your day, make some calls, open your mail, when – bam – an EEOC Charge of Discrimination. Meh.
EEOC Charges are common in my line of work, but for many employers, these agency notifications are jarring. With little notice, an employer is faced with impending deadlines and overwhelming information and document requests. Proactive employers immediately seek legal counsel, who can walk them through this oft-demanding process. While I encourage all employers to seek legal assistance upon receipt of an EEOC Charge of Discrimination, I offer the following information to help calm business owners’ Monday morning-nerves.
Let's start with the basics - who or what is the EEOC? The EEOC, or United States Equal Employment Opportunity Commission, enforces federal laws that make it illegal for employers to discriminate against job applicants or employees because of that person’s race, color, religion, sex, national origin, age, disability, or genetic information. The EEOC also enforces laws that make it illegal to retaliate against a person because he or she complained about discrimination to his or her employer, filed a Charge of Discrimination, or participated in an employment discrimination investigation or lawsuit. Through its enforcement power, the EEOC investigates Charges of Discrimination filed against employers. The Charge of Discrimination will outline the employee's grievance against the employer and explain how that grievance results in a violation of one of the following laws:
- Title VII – Prohibits discrimination on the basis of race, color, religion, national origin, or sex. Title VII extends protection to discrimination based on pregnancy, childbirth, or medical conditions associated with pregnancy and childbirth.
- Equal Pay Act of 1963 – Prohibits paying different wages to men and women for equal work performed in the same workplace
- Age Discrimination in Employment Act of 1967 – Prohibits discrimination against persons forty (40) or older based on their age.
- Title I of the Americans with Disabilities Act – Prohibits discrimination against a qualified individual with a disability in the private sector or state/local government
- Rehabilitation Act – Prohibits discrimination against a qualified person with a disability who works in the federal government.
- Genetic Information Nondiscrimination Act - Prohibits discrimination against employees or applications because of genetic information.
You may recall my article a few weeks ago, where I discussed an employee's option to file a complaint with the Department of Labor in regards to unfair wage and hour practices under the FLSA. Filing a Charge with the EEOC is distinguishable in one very important way - it is not optional. An employee wishing to pursue litigation in federal court against an offending employer must first make allegations to the agency to pursue relief under any of the above referenced federal laws.
An employee has 180 calendar days of the date the discrimination took place to file a Charge of Discrimination with the EEOC office closest to the employer. This 180-day deadline is extended to 300 days if the Charging Party first files the claim with the state or local agency that enforces a law prohibiting discrimination on the same basis as the federal law. In Tennessee, the applicable agency is the Tennessee Human Rights Commission. If the Charging Party is a federal employee or job application, the complaint process is slightly different in that the party must contact an agency counselor within forty-five (45) days of the alleged wrongful act. The Charging party may file an EEOC Charge in person or by mail. Within 10 days of the filing of the Charge, the EEOC will send notice and copy of the Charge to the employer.
Next step - The EEOC asks the Charging Party and the employer to take part in the EEOC’s mediation program. If either party declines, then the employer is given the opportunity to prove a written response to the Charge to the EEOC. The employer typically hires legal counsel to assist in providing the assigned EEOC investigator with any documents requested by the agency, including employee’s personnel file, policies and procedure, and documentation of any personnel actions against the employee, and other necessary, relevant information.
An investigator will then examine the alleged discrimination. The investigator may also visit the employer’s business to conduct interviews. After the investigation concludes, all parties will be notified of the result. The length of the investigation depends on the amount of information requested, but typically, takes about six months. If the EEOC does not find that the employer violated the law, then it will send the Charging Party a “Notice of Right to Sue” letter. If the EEOC does find a violation occurred, then it will attempt to reach a voluntary settlement with the employer on the Charging Party’s behalf. If a settlement cannot be reached, then the Charge of Discrimination is referred to the EEOC’s legal department, which decides whether or not to file a lawsuit on behalf of the Charging Party. If the legal department declines, then a Notice of Right to Sue will issue to the Charging Party. A Notice of Right to Sue letter gives the Charging Party the ability to file a lawsuit - the Charging Party has ninety (90) days to do so. If the Charging Party fails to file his or her lawsuit within this time period, then it is barred by the statute of limitations and the court will not entertain the case.
While the above gives you the basics of the EEOC process regarding Charges of Discrimination, to properly respond to agency action, I highly recommend consulting an attorney. Upon receiving an EEOC Charge, our office ensures that the proper individuals are interviewed and, where necessary, their accounts memorialized in written affidavits. Thereafter, we work with employers to gather all information requested by the EEOC, including copies of applicable personnel files and the Employee Handbook. Finally, we develop a Position Statement which explains in concise terms the employer’s account of the underlying Charge. Where applicable, our office also walks employers through the EEOC mediation process, working to accomplish a swift resolution and minimize litigation if possible. For questions on how to defend an employment lawsuit or information on navigating the EEOC Charge of Discrimination response-process, please contact us.