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The EEOC’s process is a very distinct process that must be followed, and it’s important that the process is followed because once the matter is filed in court, one of the reasons the case could be dismissed is if all of the administrative proceedings have not been adhered to. Understanding the EEOC process is critical. A lot of lawyers that are not experienced in that area don’t understand the EEOC process. We’re fortunate here at Smith & Green that our managing partners were former EEOC investigators, so this is the world that we lived in for some time, understanding the EEOC process.
Virtually what happens with the EEOC is, once you’ve voiced your concerns with the employer, and you feel like it has not been resolved amicably, or it was a termination where you no longer have the right to voice it with the employer, you file a claim with the EEOC. That could be done either by walking in or online. You schedule an interview with an investigator. At that time is when you lay out your concerns as to why you feel you have been discriminated against, based on one of those five laws.
It’s important to note that some of the claims have a 300-day statute of limitation on them, other claims have 180-day statute of limitation on them, which literally means you must have that claim filed with the EEOC or it’s a fair agency, which is a state agency that’s charged to collect those types of claims or address those claims. In Arizona, it happens to be the Arizona Department of Justice handles those claims, their employment division. Depending on where you file, it could also have an impact on whether it needs to be filed within 300 days or 180 days.
Not all employers qualify under the statute of the EEOC. If you’re going to file a race discrimination claim because you feel like you are being treated differently than people who are of a different race, sex, religion, or skin color than you, that employer has to have at least 15 employees. That’s the broad rule, at least 15 employees to qualify, to be subject to the rules or the requirements of Title 7. If that employer only has six employees, they wouldn’t qualify under Title 7.
Now there may be some other local codes that could hold that employer accountable, or state codes that could hold that employer accountable. Under the federal statute, Title 7, they would have to have 15 employees. That’s not a hardline rule because if you could have 15 employees over the course of a specific period of time, over a year for example, that could meet the 15-employee threshold.
If the employer only has one employee and has only had one employee for an entire year, Title 7 is not going to be your statute of choice to pursue under. That’s just an example of how the EEOC works. They would look at this to make sure that that employer is actually subject to the law of Title 7 or some of the other laws.
Virtually, you would go down to the EEOC, schedule it over the phone or you could do a phone interview. You could fill out the forms online. Or you can come to a lawyer’s office that has all the information. They would draft up a charge for you, referred to as a Form 5. That is the charge of discrimination. It is a plain and simple statement of what has happened to you. How you feel like you were discriminated against. What the difference was in treatment or the impact of the difference in treatment.
Once that charge is filed with the EEOC, the tolling time stops at that time. In other words, time is tolled at that point; the statute of limitation, if you’re within that 300 or 180 days, is suspended. Some of these cases go on for years and years. It’s suspended at that point. You are safe. At some point, you will be able to file in court, once you receive a notice of right to sue from the EEOC. At that point, the EEOC generally has about ten days to make sure that that claim is served on the employer. In other words, the employer gets notice of the claim.
If that investigator determines that the claim has merit to it, then that employer will be required to submit a response, or what the EEOC refers to as a position statement, or a statement of position. It’s literally them explaining their side of the story. A lot of times, especially with bigger employers, they will hire outside counsel; some of them have inside counsel. Some of them let human resources respond to these claims.
This information is submitted to the investigator and the investigative staff at the EEOC, to either conduct interviews or analyze the evidence submitted by both parties. They can conduct fact-finding conferences where they bring the parties together, sort out the facts and then that yields their determination. They can interview managers. They can interview your witnesses. They can request information from the employer like records and different things, pursuance to the Freedom of Information Act.
There are several tools that they have because, again, they are an investigative agency that’s charged by the federal government or if it’s the Department of Justice here in Arizona, they are charged by the state to investigate these claims.
Prior to investigation, there is something that can happen, which is called mediation. The case is referred up to mediation, depending on how it is. Not all cases qualify for mediation, but some cases do qualify for mediation. This is where the case goes to another division of the EEOC, the non-investigative division. They try to resolve those claims. They bring the two sides together with a mediator, an EEOC mediator. Some EEOC offices have contract mediators they bring in to sit down with the parties, to try to mediate those claims.
If a resolution is met in mediation, then the EEOC can enforce the mediation agreement. Oftentimes, this is preferred because litigating these employment law cases could be quite lengthy and could be quite expensive. Oftentimes, it’s like David versus Goliath. You have this big company who has deep pockets, if you will, and this employee who has legitimately been treated differently, or has legitimate concerns, but oftentimes they can outlast you. Mediation is always something that I would recommend employees and employers to look into because it’s a chance for you to resolve the issue. Nobody is going to leave the mediation feeling like they necessarily won, but again, it’s that middle of the road. It’s the meeting of the minds.
If the case is unsuccessful in mediation, then it pursues in the investigative track. Right now currently, the EEOC oftentimes gets behind because of staffing issues and whatnot, so it could take a case a couple of years to resolve or to get to some type of conclusion. At the conclusion of that case, the EEOC investigator, or the director of that particular office, will sign off on the decision. They will determine that there was a cause finding, that the law was violated or there was a no-cause finding. In either case, they can issue you a notice of right to sue.
If they have a cause finding, then they take the case into conciliation. Again, it’s similar to mediation but once the EEOC determines that the law has been violated, at that point is when they lose their neutrality. Throughout the entire EEOC process, remember they’re a third-party neutral agency; they’re not for you, they’re not for the employer. They’re just gathering the facts and making a determination.
Again, they are a third-party neutral agency. That is the big misconception with most employees. That you’re going down to the EEOC and they’re going to fix it. Well, that’s not true. They will look into it but it’s not until they find that the law has been violated where they shed their neutrality and then they tell the employer, we believe that you have broken the law in this case. We want you to come to conciliation with us and try to resolve that.
Again, there are caps and statutory requirements to things that they can ask for and things that they can’t ask for. It’s all controlled by the law. If conciliation is successful, then the charge of discrimination is resolved, no lawsuit is filed. If the conciliation is unsuccessful, then the EEOC can opt to sue the employer on the employee’s behalf. Those are the great minority of cases. Nine times out of ten that does not happen, unless there is a class of people or it’s some specific segment, element of law that needs to be more defined. Then the EEOC will have some of its attorneys pursue on behalf of that employee, if it’s egregious.
I’ve seen several occasions where the fine attorneys over at the EEOC will pursue a matter for the employee. If they’re not able to resolve it in conciliation, then the EEOC will issue that notice of right to sue and the cause finding, to the employee, instruct the employee that they have 90 days to file the matter in court and they have a finding from the EEOC that the EEOC believes that the employer has broken the law.
This is the point where most people go looking for a lawyer and say, I got 90 days to file this in court. It’s beneficial to have a lawyer early in the EEOC process; especially lawyers who are experienced with dealing with the EEOC. Many attorneys will turn you away.
Again, one of the benefits of our law firm is we were EEOC investigators. We know the EEOC process. We know what needs to be done. We know what loopholes to look for and to make sure that the EEOC is doing their job and know when to pull a case, when to file it and how to walk the case through the administrative process, so that your rights are preserved and that you have a better chance should the matter be filed in court.
Do you need help filing a claim with the EEOC? Contact our dedicated Phoenix employment lawyers for a free confidential consultation and let us help guide you through the EEOC process. Let our experience work for you.