Tips for EEOC

Tips for EEOCThe EEOC is tasked with enforcing civil rights laws against discrimination in the workplace. If you feel you are being discriminated against at work, check out these tips for EEOC by dedicated Phoenix employment lawyer Quacy Smith to learn more about the EEOC and how to bring a claim.

EEOC – Equal Employment Opportunity Commission

EEOC stands for the Equal Employment Opportunity Commission. It is a government entity that is run by a group of commissioners. It’s a federal agency established under the laws of the United States of America.

They are charged with the responsibility of monitoring. They are the gatekeepers for lawsuits against employers that meet certain criteria that is based on a very few specific set of laws. In fact, the set of laws and statutes that the EEOC is responsible for being the gatekeepers over is really only five laws. It includes the Title 7 of the Civil Rights Act of 1964; the Americans with Disabilities Act of 1990; the Age Discrimination in Employment Act, and the Equal Pay Act; also the Genetic Information Act, which is commonly referred to as GINA. Out of those five sets of laws, predominantly is where we derive what we call equal employment law.

The EEOC is a third-party neutral agency that is charged with the responsibility of investigating claims against employers, and/or receiving these claims from employees that feel like they have been discriminated against or treated unfairly, based on those five sets of laws. It’s out of those laws where you get equal pay issues, sexual harassment claims that fall under Title 7, or disability. If you are disabled, according to what the ADA says, it would come to the EEOC.

As those claims are brought before the EEOC (and there are certain statutory limitations that apply) they’re charged with investigating those crimes. They have a team of investigators that will investigate those claims and see if there was actually a violation of the law. If there’s a violation of the law, they’ll issue what they call a cause finding on those laws and then they pursue the employer for the employee. In some cases, if they’re not able to mediate or conciliate the case, they’ll issue a notice of right to sue, which gives you the right to go sue the employer in state of federal court on your own.

One of the reasons why the EEOC is important is that, based on one of those five laws, you cannot just walk into court and sue an employer based on one of those five laws. You would have to get a notice of right to sue, as it’s called, from the EEOC. Once a notice of right to sue is issued, you would have 90 days from that time to file a lawsuit against the employer in a federal or a state court.

Filing EEOC Charges

If you feel like you’ve been subjected to some form of discrimination and you have a claim against your employer for harassment or discrimination, rather than going to EEOC yourself, we suggest that you see an experienced employment attorney. If you come to our office, one thing that we will do is sit down with you. We will interview you, gather all of the facts related to your case, determine whether or not you have a good case, and counsel you as to whether or not we think you should pursue that matter with EEOC. Then on top of that, we will actually draft the charge for you. We will submit the charge to EEOC personally. Then we will follow through with EEOC and all of the steps that take place after that. Our recommendation to you is not to go to EEOC and let them draft the charge in the way that they think is best for you. Instead, we recommend you come to an experienced employment attorney that can help you with that.

EEOC Process

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.

EEOC Conciliation

The EEOC conciliation process is very similar to the mediation process. The conciliation process happens after the EEOC has determined that the employer has violated one of the laws. Before issuing a notice of right to sue, the EEOC will invite the employer again to conciliation, which is very similar to a mediation. The only difference really is that the EEOC starts requesting specific things.

If the employee is not represented by counsel, they’ll start requesting specific things because they have determined that that employer has broken the law. It’s at that point, where the EEOC, who in its normal course of business, is a third-party neutral agency. Once they determine a cause finding, they lose their neutrality and they become, for lack of better words, for the employee, once they determine the law has been broken and they enter the conciliation process.

If the conciliation process is successful, then the case is resolved. Whatever damages or relief that they come to an agreement on, they’re awarded to the employee. If it’s unsuccessful in conciliation, then the notice of right to sue is issued and the employer hires their own attorney, which, hopefully at that point, they’ve already had an experienced attorney in that area and they proceed to court on the matter. Or in some cases, the EEOC chooses to take the matter to court on behalf of the employee. If the employee already has counsel, the EEOC sometimes co-counsels with the employee’s private attorney.

Again, this is something that you as an employee, you shouldn’t try on your own. You need an experienced lawyer that understands the EEOC process, the law, and the conciliation process because at that point, it’s been determined that the law has been broken and you are due some relief. An experienced lawyer will make sure that you leave that conciliation process with everything that is due you, based on the damages that you have been subjected to by that employer.

EEOC Delays

Many of our clients are frustrated by the EEOC process. A lot of it is not necessarily EEOC’s fault. Currently, staffing levels at EEOC are at historic lows. I think they currently have 11 investigators in the Phoenix district office. They’re supposed to have about 33. They currently have two mediators in the EEOC office. They typically have four or more. They also don’t even have their supervisor.

Right now, a lot of investigations are taking a lot longer than they typically would take and that frustrates a lot of people. It’s frustrating to us as well because we want EEOC to wrap up the investigation and make a cause finding so that we can pursue it. These investigations typically take anywhere from six months to as long as four or even five years for EEOC to complete. That’s a long time. Again, it’s frustrating for everybody.

What we prefer to do is have the EEOC finish that process because we want EEOC to make a cause finding. If the EEOC makes a cause finding, then they will be issued a letter of determination. This letter of determination is something that we can use in court as evidence that the company committed some form of wrong.

One benefit that we have here at this law firm that others don’t is that we know many of the EEOC investigators that are former co-workers. Many of them are our friends. That won’t necessarily help you with getting a cause finding, but it is helpful when we can call them and say what’s taking so long? What can we do to speed this up? What information can I provide you? Do you need a list of witnesses’ phone numbers? I can provide you with affidavits. There are certain things that we can do to help speed up that process and make it easier for them to reach a decision in your case.

Another thing that we do is when the company responds to a charge of discrimination, it’s something that’s called the position statement. A position statement can be anywhere from five to ten pages long, and it’s the company’s response to the allegations in the charge of discrimination. What we do is we ask EEOC for a copy of that position statement and then we work with our clients to draft a rebuttal to the position statement. Then we send that rebuttal to EEOC. Oftentimes, we also send a copy of it to the employer and ask that they pay a certain demand for the harm that they have caused our client.

Again, that helps speed up the process because EEOC’s investigator can look at our response and see what witnesses need to be interviewed. What information is likely to need to come from those witnesses? It can help them in their analysis when they’re drafting their memorandum to their supervisors, to make a determination in their case.

Again, if you are experiencing EEOC delays, I recommend contacting an experienced employment lawyer in Phoenix to handle your case, and particularly in these matters we can really help speed up the process and make it easier for you to reach a conclusion in your case.

EEOC Mediation

EEOC mediation is an opportunity that is offered to some charging parties, or persons that are bringing charges against employers early on in the administrative process that the EEOC is responsible for taking care of. Normally how it happens is immediately after a charge is filed with the EEOC, if it’s not dismissed because there’s a lack of merit, the charge is routed up to the alternative dispute resolution department, that houses the mediation section of the EEOC. They determine whether the case is worthy for mediation. If it fits certain criteria, it would warrant mediation.

If it’s selected by the EEOC for mediation, then the parties are contacted and they’re invited to mediation. Mediation is a voluntary process and both sides and the EEOC must agree to the mediation for the mediation to go forward. If one side decides not to participate or declines EEOC mediation, then the case will enter back into the investigative track.

Before accepting an offer to mediate, which if you haven’t been represented by an attorney at this point in your EEOC charge, I would highly recommend that you contact an experienced attorney that is familiar with EEOC law. This is a great opportunity for you as the employee to cut down some of the time that could be associated with the investigation, to get similar remedies upfront with less cost to you. Oftentimes, it’s similar or better than what could be achieved at the end of an EEOC investigation, or after the matter has been filed in court. It’s an opportunity that you really should look at, based on the strength of the charge and the facts.

Again, it’s a case-by-case scenario so there’s not one blanket answer. I always refer employees to mediation when the case and the facts warrant such. The beauty of having an experienced employment lawyer that is experienced with EEOC law is you don’t go to those mediations unrepresented. One of our attorneys, not a paralegal, not legal staff, an attorney, will actually sit there with you; make sure that your claims are forwarded. Oftentimes, the employers will show up with high powered lawyers, and they’re representing their interests and their job. Their interest is to walk away from the table with as little damage to them as possible.

With an experienced lawyer, you can make sure that that EEOC mediation process is fruitful for you and successful; to make sure that your claims have been addressed and that some of the remedies that you’re seeking has been made whole. Again, if you’re at that point where you’ve been invited to EEOC mediation, or you feel that it may be pending soon, I would highly recommend you contact a lawyer experienced in that area so that they can walk you through that process. It can be very fruitful for you and speed up the process of your charge of discrimination.

Contact Our Phoenix Employment Lawyers

Are you experiencing discrimination in the workplace and have questions about the EEOC or how to bring a claim? Check out our tips for EEOC and then contact our dedicated Phoenix employment lawyers for a free confidential consultation and let our experience work for you.

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