For the next several series of blog posts, I am going to be discussing what you should expect to happen after you hire a lawyer for your employment law dispute (excluding federal employees). The series will be divided into six parts:
Part 1: EEOC Proceedings
Part 2: Filing a Lawsuit
Part 3: The Discovery Process
Part 4: Summary Judgment- The “Mini-Trial”
Part 5: Mediation and Alternative Dispute Resolution
Part 6: Trial
Today we will be talking about the EEOC process. Most employment law disputes (with some exceptions such FMLA suits, pay/overtime suits, Equal Pay Act suits, and state based claims for breach of contract, violation of public policy, or state torts) must be investigated by the EEOC before you are even allowed to file a lawsuit in court. If you attempt to file a lawsuit without going through the EEOC first, your lawsuit will likely be dismissed for lack of jurisdiction. The EEOC (Equal Employment Opportunity Commission) is a federal agency tasked with investigating complaints of workplace discrimination based on race, color, national origin, religion, sex (including pregnancy discrimination), age, disability, genetic information, and retaliation for reporting/participating/opposing a discriminatory practice. Assuming your employer has a minimum of 15 employees (or 20 for age complaints) you must make a complaint to the EEOC within 180-300 days of the discriminatory action for your complaint to be timely. If you wait beyond this time period, your complaint can be dismissed for untimeliness. It is important to take prompt action if you feel you are the subject of workplace discrimination or retaliation based on one of the above criteria.
The EEOC has a very comprehensive website that explains the process in detail and provides a wealth of information on filing a charge. You can click here for information on how to file a charge of discrimination or retaliation with the EEOC.
You can call your local EEOC office to get more information or to get the complaint process started on the telephone. Some lawyers will also assist you with the EEOC process if they agree to represent you. Once you have filed your initial complaint and the EEOC opens a file for your charge, your employer will be notified that you have filed a charge and will be given a chance to file their “Position Statement.” The employer’s Position Statement is their place to tell the EEOC why they believe the way they treated you was not unlawful. Employees are not typically given a copy of the Position Statement until after the investigation is complete and only after a Freedom of Information Act (“FOIA”) request is sent in. If an attorney is representing you, he or she will likely send a FOIA request on your behalf after the investigation is complete.
After the employer files its “Position Statement,” the EEOC will send a notice to both sides inviting them to participate in an EEOC mediation (there is no mediator charge for an EEOC mediation). The EEOC mediation is not required but can be beneficial in certain circumstances. If either party chooses not to participate, then no mediation will occur. If both parties agree to mediation, the mediation will be scheduled with an EEOC mediator. The EEOC mediator is typically a person employed by the EEOC that may or may not be an attorney. They will set up a time to meet (typically a 1/2 day) in a neutral location and all parties will meet at the prescribed time. Normally, the mediation will start with everyone in the same room where the attorneys will give a brief opening statement. After opening statements, the parties will be separated into different rooms and the mediator will shuttle back and forth between the rooms to see if a resolution can be achieved. If the mediation is successful, the case ends.
If mediation is not successful, your file will be returned to the EEOC investigator for further investigation. The EEOC investigator will normally call the employee (and his or her attorney if they have one) and conduct a conference call to get some more facts. After the EEOC concludes the investigation, they will typically issue a “finding.” The EEOC “finding” could include a finding of discrimination or of non-discrimination. Either way, the “finding” will be accompanied by a “Notice of Right to Sue.” The Notice of Right to Sue will give no more than 90 days to file your lawsuit in court. Your Notice of Right to Sue is the golden ticket to bring your case in court. Without your golden ticket, you cannot file a lawsuit. It is important that if you do not have an attorney during the EEOC process but plan to hire one to file a lawsuit in court, you start calling employment lawyers immediately after receiving your Notice of Right to Sue. It can take some time to find an employment law attorney that can help you with your case and get your lawsuit filed within the 90 day timeframe.
The entire EEOC process can last about one year if mediation is not successful. The EEOC has a large backlog to get through and attorneys cannot speed the process up. In Part Two of this blog series, I will discuss what happens after you have your Notice of Right to Sue and move forward to filing your lawsuit in federal or state court.