To handle a complaint of discrimination effectively, an employer should have a basic understanding of the process and procedures used by the EEOC to enforce the federal laws that prohibit employment discrimination. By knowing in advance what to expect, an employer can best prepare its defense.
EEOC ProcessAny individual who believes that his or her employment rights have been violated may file a charge of discrimination with EEOC. Charges may be filed by mail or in person at their nearest EEOC office. Once an employee or applicant files a charge, the EEOC then serves notice on the employer, usually by mail, that a charge has been filed against them. This notice normally includes a copy of the actual charge filed by the employee or applicant.
All laws enforced by EEOC, except the Equal Pay Act, require filing a charge with EEOC before a private lawsuit may be filed in court. There are strict time limits within which charges must be filed. A charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party’s rights. This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law (U.S. Equal Employment Opportunity Commission).
Employers must understand that the persons who evaluate and decide the outcome of employment discrimination cases (the EEOC investigator, federal or state judge, and/or jury) have keen senses of fairness and expect that employees will be treated in a fair manner. As a result, employers are exposed to substantial liability for any acts, including perceived acts, of discrimination in the workplace. Employers should take any charge of discrimination seriously and the employer must keep in mind that, at a minimum, it needs to have a legitimate, non-discriminatory reason for taking the action in question. In addition, an employer’s response will be evaluated by persons who have a different perspective than the employer. What may appear to an employer, as a benign, routine employment action, can be perceived by a jury as the most pernicious, discriminatory deed. With this in mind, an employer should structure its response to show that its action was not only legal, but also fair (Bureau of National Affairs, 2002).
Resolving the Discrimination ChargeThe filing of the charge triggers an EEOC investigation into whether or not there is reasonable cause to believe that the employer did in fact illegally discriminate against an individual. An employer may be asked to submit a written statement of position to explain its version of events. At some point in the investigation, a fact-finding conference might be held (Bureau of National Affairs, 2002). Relatively informal, a fact-finding conference is attended by the charging party, respondent and necessary witnesses. No official record is made and witnesses are not placed under oath. Most employers bring counsel to the conference.
After concluding its investigation, the EEOC makes a determination as to whether there is reasonable cause to believe that the alleged discrimination occurred. The investigation starts with a review of all documents in the employee’s personnel file, and should be expanded to include, among other things, a review of applicable company policies, at least one interview with potential witnesses, and a review of internal documents for any prior incidents similar to the action on which the complaint is based.
The lack of effective anti-discrimination policies can be damaging to an employer’s case. On the other hand, a well-publicized, strictly enforced, non-discrimination policy can prove invaluable to an employer defending against a charge of discrimination. By reviewing its policies, an employer also may discover that the complaining employee did not follow proper company procedure in reporting the complaint. All of this information can be used by the employer in responding to the complaint.
A reasonable cause determination indicates that “it is more likely than not” that illegal discrimination took place. A no reasonable cause determination means that the EEOC has not found sufficient evidence to support a finding of discrimination. While a “no cause” finding does not bar the complaining party from subsequently filing suit in state or federal court on the same claim, as a practical matter most employees do not pursue their claims after the EEOC issues a “no cause” finding.
If the evidence establishes that discrimination has occurred, the employer and the charging party will be informed of this in a letter of determination that explains the finding. EEOC will then attempt conciliation with the employer to develop a remedy for the discrimination (U.S. Equal Employment Opportunity Commission).
If the case is successfully conciliated, or if a case has earlier been successfully mediated or settled, neither EEOC nor the charging party may go to court unless the conciliation, mediation, or settlement agreement is not honored (U.S. Equal Employment Opportunity Commission).
If EEOC is unable to successfully conciliate the case, the agency will decide whether to bring suit in federal court. However, no statements made by any party during the conciliation process can be used in any subsequent lawsuit. If EEOC decides not to sue, it will issue a notice closing the case and giving the charging party 90 days in which to file a lawsuit on his or her own behalf (U.S. Equal Employment Opportunity Commission).
Employees who believe that they have been discriminated against by an employer, an employment agency, or a labor union have the right to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Employer’s need to ensure that discriminatory practice or action, if it did occur, is stopped, and that it does not occur again. By properly handling the charge at its early stages, an employer can reduce significantly, or possibly eliminate the potential liability.
The Bureau of National Affairs, 2002. Retrieved September 11, 2006, from http://www.bna.comU.S. Equal Employment Opportunity Commission. Retrieved September 11, 2006, from http://www.eeoc.gov