What Does At-Will Employment Really Mean?

At-will employment is something most U.S.-based employers are familiar with. But what does this term really mean? Can an employer actually terminate an employee without any reason at all? What are the exceptions?

Defining At-Will Employment

First, let’s start with the definition of “at-will employment.” It does in fact mean that an employer has the right to terminate an employee at any time and for any (or no) reason. It also means that the employee has the right to terminate his or her own employment at any time and for any (or no) reason. There are no predefined legal requirements in terms of notice periods either. This means the termination can be done without any prior notice.

If an employer/employee who is in an at-will employment situation decides to terminate the employment relationship, the other party has no recourse. In the United States, in almost every state (Montana is the exception), an employee is considered to be an at-will employee unless there is proof otherwise, such as an employment contract.

Exceptions to the At-Will Employment Doctrine

Employers need to understand that there are caveats to the above definition. This is because other laws may be broken if a termination is made for an otherwise illegal reason, such as discrimination. Here are some of the exceptions to the at-will employment doctrine:

      • An employee cannot be fired for a discriminatory reason. Title VII of the Civil Rights Act, for example, protects employees from discrimination based on race, national origin, religion, color, or sex. For another example, the Americans with Disabilities Act makes it illegal to discriminate against someone because of a disability.
      • An employee cannot be fired out of retaliation for performing a legally protected action. For example, an employer cannot fire an employee for filing a workers’ compensation claim. Other retaliation-protected actions include:
        • Filing a discrimination or harassment suit
        • Being a whistleblower regarding illegal or unsafe practices
        • Refusing to perform illegal activities
        • Participating in a workplace investigation
        • Requesting reasonable accommodation for a disability
        • Taking legally protected leave from work, such as FMLA  leave
        • Discussing (or complaining about) the working environment or wage and overtime practices

        An employee with a contract that outlines the terms of employment cannot be fired outside of those terms. In other words, contracts supersede at-will employment assumptions. Some states also provide protections for implied (unwritten) contracts. Check your local laws.

    • An employer who provides some protections in employment policies, such as firing only for just cause, must abide by those protections. In this case, the employer has opted to forgo the at-will option by providing other protections.

As we’ve shown here, terminating an at-will employee is not always as straightforward as it may seem. Employers should also remember that some states have more stringent requirements. Be sure to check state and local laws before making any termination decision.

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How to Identify and Manage Workplace Bullying

workplace bullying
Medically reviewed by Timothy J. Legg, PhD, PsyD on April 29, 2019
Written by Crystal Raypole
What is workplace bullying?

Workplace bullying is harmful, targeted behavior that happens at work. It might be spiteful, offensive, mocking, or intimidating. It forms a pattern, and it tends to be directed at one person or a few people.

A few examples of bullying include:

  • targeted practical jokes
  • being purposely misled about work duties, like incorrect deadlines or unclear directions
  • continued denial of requests for time off without an appropriate or valid reason
  • threats, humiliation, and other verbal abuse
  • excessive performance monitoring
  • overly harsh or unjust criticism

Criticism or monitoring isn’t always bullying. For example, objective and constructive criticism and disciplinary action directly related to workplace behavior or job performance aren’t considered bullying.

But criticism meant to intimidate, humiliate, or single someone out without reason would be considered bullying.

According to the Workplace Bullying Institute, more than 60 million working people in the United States are affected by bullying.

Existing federal and state laws only protect workers against bullying when it involves physical harm or when the target belongs to a protected group, such as people living with disabilities or people of color.

Since bullying is often verbal or psychological in nature, it may not always be visible to others.

Read on to learn more about ways to identify workplace bullies, how workplace bullying can affect you, and safe actions you can take against bullying.

Identifying workplace bullying

Bullying can be subtle. One helpful way to identify bullying is to consider how others might view what’s happening. This can depend, at least partially, on the circumstances. But if most people would see a specific behavior as unreasonable, it’s generally bullying.

Types of bullying

Bullying behaviors might be:

  • Verbal. This could include mockery, humiliation, jokes, gossip, or other spoken abuse.
  • Intimidating. This might include threats, social exclusion in the workplace, spying, or other invasions of privacy.
  • Related to work performance. Examples include wrongful blame, work sabotage or interference, or stealing or taking credit for ideas.
  • Retaliatory. In some cases, talking about the bullying can lead to accusations of lying, further exclusion, refused promotions, or other retaliation.
  • Institutional. Institutional bullying happens when a workplace accepts, allows, and even encourages bullying to take place. This bullying might include unrealistic production goals, forced overtime, or singling out those who can’t keep up.

Bullying behavior is repeated over time. This sets it apart from harassment, which is often limited to a single instance. Persistent harassment can become bullying, but since harassment refers to actions toward a protected group of people, it’s illegal, unlike bullying.

Early warning signs of bullying can vary:

  • Co-workers might become quiet or leave the room when you walk in, or they might simply ignore you.
  • You might be left out of office culture, such as chitchat, parties, or team lunches.
  • Your supervisor or manager might check on you often or ask you to meet multiple times a week without a clear reason.
  • You may be asked to do new tasks or tasks outside your typical duties without training or help, even when you request it.
  • It may seem like your work is frequently monitored, to the point where you begin to doubt yourself and have difficulty with your regular tasks.
  • You might be asked to do difficult or seemingly pointless tasks and be ridiculed or criticized when you can’t get them done.
  • You may notice a pattern of your documents, files, other work-related items, or personal belongings going missing.

These incidents may seem random at first. If they continue, you may worry something you did caused them and fear you’ll be fired or demoted. Thinking about work, even on your time off, may cause anxiety and dread.

Anyone can bully others. According to 2017 research from the Workplace Bullying Institute:

  • About 70 percent of bullies are male, and about 30 percent are female.
  • Both male and female bullies are more likely to target women.
  • Sixty-one percent of bullying comes from bosses or supervisors. Thirty-three percent comes from co-workers. The remaining 6 percent occurs when people at lower employment levels bully their supervisors or others above them.
  • Protected groups are bullied more frequently. Only 19 percent of people bullied were white.

Bullying from managers might involve abuse of power, including negative performance reviews that aren’t justified, shouting or threats of firing or demotion, or denying time off or transfer to another department.

People working at the same level often bully through gossip, work sabotage, or criticism. Bullying can occur between people who work closely together, but it also happens across departments.

People who work in different departments may be more likely to bully through email or by spreading rumors.

Lower level employees can bully those working above them. For example, someone might:

  • show continued disrespect to their manager
  • refuse to complete tasks
  • spread rumors about the manager
  • do things to make their manager seem incompetent

According to 2014 research from the Workplace Bullying Institute, people believed that targets of bullying were more likely to be kind, compassionate, cooperative, and agreeable.

Bullying may occur more frequently in work environments that:

  • are stressful or change frequently
  • have heavy workloads
  • have unclear policies about employee behavior
  • have poor employee communication and relationships
  • have more employees who are bored or worried about job security
How can bullying affect your health?

Bullying can have significant, serious effects on physical and mental health.

While leaving a job or changing departments could end the bullying, this isn’t always possible. Even when you can remove yourself from the bullying environment, the impact of bullying can last long after bullying has stopped.

Physical health effects of bullying

If you’re being bullied, you may:

Mental health effects of bullying

Psychological effects of bullying may include:

  • thinking and worrying about work constantly, even during time off
  • dreading work and wanting to stay home
  • needing time off to recover from stress
  • losing interest in things you usually like to do
  • increased risk for depression and anxiety
  • suicidal thoughts
  • low self-esteem
  • self-doubt, or wondering if you’ve imagined the bullying
How does bullying affect the workplace?

Workplaces with high rates of bullying can also experience negative consequences, such as:

  • financial loss resulting from legal costs or bullying investigations
  • decreased productivity and morale
  • increased employee absences
  • high turnover rates
  • poor team dynamics
  • reduced trust, effort, and loyalty from employees

People who bully may eventually face consequences, such as formal reprimands, transfer, or job loss. But many types of bullying aren’t illegal.

When bullying isn’t addressed, it becomes easier for people to continue bullying, especially when the bullying is subtle. Bullies who take credit for work or intentionally make others look bad may end up receiving praise or being promoted.

When experiencing bullying, it’s common to feel powerless and unable to do anything to stop it. If you try to stand up to the bully, you may be threatened or told no one will believe you. If it’s your manager bullying you, you may wonder who to tell.

First, take a moment to remind yourself that bullying is never your fault, regardless of what triggered it. Even if someone bullies you by making it seem like you can’t do your job, bullying is more about power and control, not your work ability.

Begin to take action against bullying with these steps:

  • Document the bullying. Keep track of all bullying actions in writing. Note the date, the time, where the bullying took place, and other people who were in the room.
  • Save physical evidence. Keep any threatening notes, comments, or emails you receive, even if they’re unsigned. If there are documents that can help prove bullying, such as denied PTO requests, overly harsh commentary on assigned work, and so on, keep these in a safe place.
  • Report the bullying. Your workplace may have a designated person you can talk to if you don’t feel safe talking to your direct supervisor. Human resources is a good place to start. It’s also possible to talk about the bullying with someone higher up if your supervisor is unhelpful or is the person doing the bullying.
  • Confront the bully. If you know who’s bullying you, bring along a trusted witness, such as a co-worker or supervisor, and ask them to stop — if you feel comfortable doing so. Be calm, direct, and polite.
  • Review work policies. Your employee handbook may outline steps of action or policies against bullying. Also consider reviewing state or even federal policies about the type of bullying you’re experiencing.
  • Seek legal guidance. Consider talking to a lawyer, depending on the circumstances of the bullying. Legal action may not always be possible, but a lawyer can offer specific advice.
  • Reach out to others. Co-workers may be able to offer support. Talking to your loved ones about the bullying can also help. You can also talk to a therapist. They can provide professional support and help you explore ways to cope with the effects of bullying while you take other action.

If you’re a member of a union, your union representative may be able to offer some guidance and support on how to deal with bullying.

You can also look into your employer’s employee assistance program, if they have one. EAPs help you access resources to address a variety of issues that can affect your mental health and overall well-being.

Suicide prevention resources

Bullying can affect mental health and general well-being. In some cases, bullying can contribute to depression and thoughts of suicide.

If you have thoughts of suicide, reach out to a suicide helpline immediately. You can call the National Suicide Prevention Lifeline 24 hours a day, 7 days a week.

Legal rights

There currently aren’t any laws against workplace bullying in the United States.

The Healthy Workplace Bill, first introduced in 2001, aims to help prevent and reduce workplace bullying and its negative effects by offering protections to people who experience bullying. It can also help employers create antibullying policies and procedures.

As of 2019, 30 states have adopted some form of this bill. Learn more about the Healthy Workplace Bill here.

How to help when you witness bullying

If you witness bullying, speak up! People often say nothing out of fear they’ll become targets, but ignoring bullying contributes to a toxic work environment.

Workplace policies against bullying can help people feel safer about speaking up when they see bullying happen.

If you witness bullying, you can help by:

  • Offering support. Support could involve acting as a witness if the person targeted wants to ask the bully to stop. You can also help by going to HR with your co-worker.
  • Listening. If your co-worker doesn’t feel safe going to HR, they may feel better having someone to talk to about the situation.
  • Reporting the incident. Your account of what happened could help your management team realize there’s a problem.
  • Staying close to your co-worker, when possible. Having a supportive co-worker nearby could help reduce instances of bullying.

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Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

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What Actions Can Be Considered Workplace Retaliation?

Woman at desk, head bowed over computer, as she grapples alone with illegal retaliation in her workplace

Retaliation is revenge and can conjure up notions of Liam Neeson going after his daughter’s kidnappers in “Taken.” Workplace retaliation isn’t quite so dramatic. Or at least, it’s hopefully not quite that dramatic.

But workplace retaliation can be devastating, and it can (but doesn’t always) break the law. Understanding the rules around workplace retaliation is critical for Human Resources staff members, managers, and anyone who has a position of influence in the business.

What Does Retaliation Look Like?

Jane comes to HR and says,

John keeps asking me out on dates. I have told him no and asked him to stop.

John is a high performer, so you transfer Jane to another less desirable shift.

This is a classic case of retaliation: Jane complained about sexual harassment, and you punished her by moving her to a different shift. Now, you may say “but her pay remains the same, her title and seniority weren’t affected. This isn’t retaliation. And besides, Jane didn’t even say it was sexual harassment.”

The employee doesn’t have to use the magic words to receive legal protection for their actions. Jane complained about unwanted sexual behavior in her department; therefore it’s a sexual harassment complaint. The transfer retaliates against Jane.

Bob has 40,000 Twitter followers, including several coworkers. He posts a picture of his paystub with the caption, “Can you believe that Acme Inc. pays such terrible wages?”.

One of his coworkers take a screenshot and presents it to you. Bob named the company, and many people have replied and retweeted his tweet. As a result, you call Bob into the office and tell him that he has violated the company’s social media policy, and for doing such, you are suspending him for two weeks without pay.

This is illegal retaliation for concerted activities. According to the National Labor Relations Board:

If employees are fired, suspended, or otherwise penalized for taking part in a protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.

In other words, employees are allowed to discuss their working conditions with their coworkers, and talking about pay is covered by that law. It doesn’t matter that many others saw it on Twitter. The National Labor Relations Board still considers his comments concerted action.

Now, of course, there cases where retaliation is much more distinctly visible. Steve complains of racial discrimination. You immediately fire Steve for a poor attitude. But activities and actions like transfers  are a lot more difficult to pin down.

Is Retaliation Always Illegal?

It’s not. Retaliation is only illegal when the action that precedes the retaliation is protected by law. This can vary from state to state. It’s always illegal to retaliate against an employee for actions such as sexual harassment, racial discrimination, and concerted workplace activities. Some states have whistleblower protections that protect employees who bring up any variety of illegal activities, but not all.

If an employee makes a complaint that is unfounded, retaliation can be legal, and it can be illegal. For instance, if Jane complains that John is sexually harassing her, and you investigate and find out that actually John just asked her out one time. Factually, you found that Jane said no and he never bothered her again.

But, you still cannot retaliate against Jane as long as she genuinely believed that John behaved illegally. But, if you investigate and find out that Jane wanted John’s better shift, so she made up her complaint, then you can take action and retaliate.

The critical issue is that an employee must have a sincere belief that what they reported is illegal. Otherwise, retaliation is allowed.

Retaliation Doesn’t Stop Consequences

You may have a situation in which an employee is a poor performer, and just before you were going to discipline or terminate the employee, he files a complaint. That complaint doesn’t negate any other performance or employee actions. However, if you don’t have the documentation before the claim, acting after he files the complaint will look like illegal retaliation.

If you have documentation, you can continue along the disciplinary path, but do consider that the poor performance is a result of the harassment or discrimination, rather than an entirely separate situation.

How Do You Stop Retaliation?

Making a simple policy of “no retaliation” won’t solve all of your problems. (Of course, a policy never solves all problems.) You have to consider each situation carefully and on its own merits. Going back to Jane and John, how do you respond? If you determine John’s behavior wasn’t severe enough for punishment, yet Jane doesn’t wish to work with him anymore, how do you proceed?

If you transferred John to the less desirable shift, you are punishing him for something he didn’t do. Transferring Jane is retaliation as long as she had a sincere belief that John harassed her. Resolving such a situation can take serious negotiation and careful thought.

You may also need to sit down with Jane and explain why John’s behavior was not harassment, and that if she wishes to move to a different shift, you can do that, but otherwise, she still has to work with John. Explain to her that to transfer John when you have concluded that he did no wrong—is the wrong decision for the business.

You need to train your managers not to retaliate, and to report all protected complaints to HR. That will help you ensure that no retaliatory decisions happen and that you investigate all potential allegations.

Remember, if an employee sues you and you win on the facts, you can still lose on reported retaliation if you treated the complainant poorly. That’s why it’s critical to think through your actions before you take them and even consider discussing the right course of action with an employment law attorney.

 

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Overview Of Federal Sector EEO Complaint Process

Source: Equal Employment Opportunity Commission

If you are a federal employee or job applicant, the law protects you from discrimination because of your race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. The law also protects you from retaliation if you oppose employment discrimination, file a complaint of discrimination, or participate in the EEO complaint process (even if the complaint is not yours.)

There are also federal laws and regulations and Executive Orders(which are not enforced by EEOC) that prohibit discrimination on bases such as sexual orientation, marital status, parental status, or political affiliation.

If you are a federal employee or job applicant and you believe that a federal agency has discriminated against you, you have a right to file a complaint. Each agency is required to post information about how to contact the agency’s EEO Office. You can contact an EEO Counselor by calling the office responsible for the agency’s EEO complaints program.

EEO Counselor

The first step is to contact an EEO Counselor at the agency where you work or where you applied for a job. Generally, you must contact the EEO Counselor within 45 days from the day the discrimination occurred.

In most cases the EEO Counselor will give you the choice of participating either in EEO counseling or in an alternative dispute resolution (ADR) program, such as a mediation program.

If you do not settle the dispute during counseling or through ADR, you can file a formal discrimination complaint against the agency with the agency’s EEO Office. You must file within 15 days from the day you receive notice from your EEO Counselor about how to file.

Filing A Formal Complaint

Once you have filed a formal complaint, the agency will review the complaint and decide whether or not the case should be dismissed for a procedural reason (for example, your claim was filed too late).

If the agency doesn’t dismiss the complaint, it will conduct an investigation. The agency has 180 days from the day you filed your complaint to finish the investigation.

When the investigation is finished, the agency will issue a notice giving you two choices: either request a hearing before an EEOC Administrative Judge or ask the agency to issue a decision as to whether the discrimination occurred.

Agency Issues A Decision (Final Action)

If you ask the agency to issue a decision and no discrimination is found, or if you disagree with some part of the decision, you can appeal the decision to EEOC or challenge it in federal district court.

Requesting A Hearing

If you want to ask for a hearing, you must make your request in writing or via the EEOC Public Portal located at https://publicportal.eeoc.gov/ where you can also upload hearing requests, and manage your personal and representative information within 30 days from the day you receive the notice from the agency about your hearing rights. If you request a hearing, an EEOC Administrative Judge will conduct the hearing, make a decision, and order relief if discrimination is found.

Once the agency receives the Administrative Judge’s decision, the agency will issue what is called a final order which will tell you whether the agency agrees with the Administrative Judge and if it will grant any relief the judge ordered. The agency will have 40 days to issue the final order. It will also contain information about your right to appeal to EEOC, your right to file a civil action in federal district court, and the deadline for filing both an appeal and a civil action.

Filing An Appeal Of The Agency’s Final Order

You have the right to appeal an agency’s final order (including a final order dismissing your complaint) to EEOC Office of Federal Operations. You must file your appeal no later than 30 days after you receive the final order. You may file your appeal using the EEOC’s Public Portal located at https://publicportal.eeoc.gov/ where you can also upload selected documents, and manage your personal and representative information.

EEOC appellate attorneys will review the entire file, including the agency’s investigation, the decision of the Administrative Judge, the transcript of what was said at the hearing (if there was a hearing), and any appeal statements.

If the agency disagrees with any part of the Administrative Judge’s decision, it must appeal to EEOC.

Request For Reconsideration Of The Appeal Decision

If you do not agree with the EEOC’s decision on your appeal, you can ask for a reconsideration of that decision. A request for reconsideration is only granted if you can show that the decision is based on a mistake about the facts of the case or the law applied to the facts. You must ask for reconsideration no later than 30 days after you receive our decision on your appeal.

Once EEOC has issued a decision on the appeal, the agency also has the right to ask EEOC to reconsider that decision.

Once we have made a decision on your request for reconsideration, the decision is final.

Filing A Lawsuit

You must go through the administrative complaint process before you can file a lawsuit. There are several different points during the process; however, when you will have the opportunity to quit the process and file a lawsuit in court, including:

  • After 180 days have passed from the day you filed your complaint, if the agency has not issued a decision and no appeal has been filed
  • Within 90 days from the day you receive the agency’s decision on your complaint, so long as no appeal has been filed
  • After the 180 days from the day you filed your appeal if the EEOC has not issued a decision, or
  • Within 90 days from the day you receive the EEOC’s decision on your appeal.

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Federal Employees – Discrimination

 

1. I am a federal employee and believe that I have suffered discrimination at work. Do I have a different process to follow than other employees?

2. What if I miss the 45-day deadline?

3. Once I initiate the EEO process at my agency, what happens next?

4. Can I resolve my case during the counseling period?

5. What happens if I am unable to resolve my case within the counseling period?

6. What happens once I have filed a formal complaint?

7. Will my complaint be investigated?

8. Will I have a chance to respond to the Agency’s information?

9. How long will the investigation take?

10. Will discovery be allowed?

11. How do I prove my case during the investigation?

12. What happens once discovery ends?

13. What happens at the EEO hearing?

14. What happens after the hearing is over?

15. Can I file a lawsuit if I am not happy with the EEOC’s resolution of my case?

16. Should I get a lawyer?

1. I am a federal employee and believe that I have suffered discrimination at work. Do I have a different process to follow than other employees?

Yes. When a federal employee believes she has been the subject of discrimination or retaliation, she must go through an administrative process in an attempt to resolve the situation. The first thing a federal employee must do to start this process is to contact an EEO counselor at the Agency where he or she is employed. This step is called “initiating the EEO process.” You must initiate the EEO process within 45 days of the last discriminatory or retaliatory incident.

2. What if I miss the 45-day deadline?

The law provides that the time limit is extended if you show that:

  • You were not notified of the time limits and were not otherwise aware of them;
  • You did not and reasonably should not have known that the discriminatory matter occurred; or
  • Despite due diligence you were prevented by circumstances beyond your control from contacting the counselor within the time limits.

However, you should assume that you only have 45 days, as it may be difficult to prove that these exceptions should apply to your situation.

3. Once I initiate the EEO process at my agency, what happens next?

The counselor will discuss the claims with you and may have you fill out pre-complaint paperwork. The counselor will advise you about the EEO process, but the counselor should not give legal advice, as the counselor works for the Agency.

EEO counseling generally lasts 30 days, unless you agree to extend the counseling period. During the counseling period, the counselor should advise management of your concerns and attempt to resolve them.

4. Can I resolve my case during the counseling period?

While it is possible to gain resolution informally through the counselor in the counseling stage, it does not occur very often. However, you and the Agency may agree to early Alternative Dispute Resolution (ADR) or mediation during the counseling period, which will extend the counseling period, usually to 60 or 90 days instead of 30 days.

Some cases are suitable for early ADR. Early ADR is an opportunity to resolve a complaint early on in the process, saving time, money, and resources, for all parties involved. Early ADR may also preserve the working relationship, allowing both parties to interact amicably in the future. However, both parties need to agree to ADR as it is voluntary. Early ADR is best for cases where the facts are relatively straightforward and little further investigation or discovery is necessary.

5. What happens if I am unable to resolve my case within the counseling period?

After the counseling period concludes, if resolution has not been reached, the counselor issues the employee a Notice of Right to File a Formal Complaint, along with a complaint form. The employee has 15 days from receipt of the Notice to file a formal complaint.

The complaint should not be long and detailed. The complaint should simply state the bases of discrimination (for example, sex (male), disability (asthma), and retaliation (prior EEO activity)). The complaint should also state the incidents, or issues, which you believe show discrimination or retaliation, including dates. The complaint should name the individuals alleged to be responsible for the discrimination or retaliation, also called the Responsible Management Officials (RMOs).

The complaint may also ask for the remedy requested. While the employee need not list every remedy specifically, she should state that she desires compensatory damages (up to $300,000, although an amount need not be specified), attorney fees and costs, and any other relief that would make her whole. Punitive damages are not available against the U.S. government in EEO cases.

6. What happens once I have filed a formal complaint?

After filing the formal complaint, the Agency may issue an acceptance letter, an acceptance and partial dismissal letter, or a dismissal letter, accepting or denying the claims in the formal complaint. It is important that you, as the Complainant, review this letter carefully and assure that it covers all the bases and issues you desire. If it does not, you should write a letter within the time period allotted, often 5 or 7 days, to the Agency explaining why the Agency incorrectly determined the bases and/or issues. The Agency very often will not adjust the bases or issues accordingly, but the issue will be preserved for appeal or trial. The issue can be raised again before an EEOC Administrative Judge, in the case of a partial acceptance dismissal, or the EEOC Office of Federal Operations, in the case of a complete dismissal.

7. Will my complaint be investigated?

Yes. Once the complaint has been accepted, the complaint is forwarded on to an EEO investigator, who either works directly for the Agency or works for the Agency on a contract basis. The investigator will interview witnesses and gather documentation regarding the complaint. The investigator may conduct the investigation through in-person interviews, telephonic interviews, or through written affidavits. The investigator often begins his or her investigation with your testimony as the Complainant. You will either meet with the investigator and sign off on a written affidavit or submit written responses, under oath, to the investigator’s questions. It is very important that you give a full and complete version of the facts during the investigation. However, you must also be concise and responsive to the investigator’s questions. You can also provide the investigator with relevant documentation.

Perhaps most importantly, you should tell the investigator, in writing, as part of your affidavit, what supportive witnesses the investigator should interview and to what those witnesses can testify. Finally, you should make sure you tell the investigator, in writing, through your affidavit, why you think the Agency subjected you to discrimination or retaliation, including if others outside of your protected category were treated more favorably, how, by whom, and when.

8. Will I have a chance to respond to the Agency’s information?

Maybe. After the investigator gathers information from witnesses and management, the investigator often gives you a chance to rebut management affidavits. When doing so, you should rebut each affidavit point-by-point in a clear and concise manner. You should always keep in mind that the investigation is the only thing the Administrative Judge (AJ) will have regarding your case for the majority of the case processing, until hearing. You should also keep in mind that the Agency will review the Report of Investigation (ROI) and determine its position on resolution based, in part, on the ROI. Thus, it is very important for you to tell the whole story in the ROI and list all relevant supportive witnesses and facts in a clear and concise manner.

9. How long will the investigation take?

The ROI should be issued within 180 days of when you filed the complaint. Within 30 days of when you receive the receipt or after 180 days from filing has passed, you may request a hearing with an EEOC Administrative Judge (AJ). An AJ will then be assigned to the matter and will issue an order to the parties, setting forth many important deadlines, with which the parties must comply or risk prejudicing their case.

10. Will discovery be allowed?

Yes. The AJ will give the parties the opportunity to conduct discovery, in order for each side to obtain relevant information from the other to aid the preparation of each party’s case. The discovery process includes asking the opposing party for additional information through written questions, written requests for production of documents, written requests for admissions, and depositions. Depositions usually take place at counsel’s office in the presence of a court reporter. Depositions consist of the lawyer asking the witness questions about the case. Transcripts from depositions can be used at a hearing to show a witness’s inconsistent testimony or, in certain situations, in lieu of in-person testimony by that witness. It is very important that you as the Complainant prepare for your deposition adequately, reviewing the record and making sure your answers are consistent.

In general, discovery is a very important process because it allows the parties to gain more information to assess their case and to hopefully support their arguments. Based on discovery, the parties can often better assess whether their case meets the legal burdens it will need to meet to be successful at hearing. Discovery usually lasts approximately 90 days.

11. How do I prove my case during the investigation?

It is the employee’s burden to prove by a preponderance (over 50%) of the evidence that a motivating factor of the decision maker was based on the employee’s protected classification such as race, age or disability or, in retaliation cases, because the employee participated in his/her or another employee’s EEO case. This means that after you allege in your EEO complaint that an adverse action was taken against you because of race, for example, the agency has the burden to explain why it took the action and that those reasons are legitimate, nondiscriminatory and nonretaliatory reasons. The burden then switches to the employee to prove there is direct evidence of discriminatory or retaliatory motive (such as the rare statement by the decision maker indicating bias or intent) or indirect evidence (that the reasons offered are not true, but are pretexts for discrimination or retaliation). If you cannot prove that the reasons given for the action are not true or are not credible, you cannot win your EEO claim.

12. What happens once discovery ends?

After the discovery period ends, the parties prepare for the hearing, a session with the administrative judge where both sides present evidence. The parties may also make additional attempts at resolving the case, based on what was uncovered in discovery and their resulting assessment of the case. The AJ may pressure the parties to resolve the complaint. In doing so, the AJ may discuss the merits of settlement with one party or both. The pre-hearing period may consist of motions to decide the case without a hearing (usually brought by the Agency), pre-hearing submissions (listing witnesses, expected testimony, issues to be tried, and exhibits), a pre-hearing conference with the opposing party and the judge, and perhaps a settlement conference or ADR session.

13. What happens at the EEO hearing?

The EEO hearing is conducted by the AJ, either at the EEOC field or regional office, the Agency office, or at a location designated by the AJ. At the EEO hearing both parties are given an opportunity to do a short (often five to ten minutes) opening statement.

In EEO complaints, the Complainant bears the burden of proof at all times, although the burden of persuasion shifts. Therefore you will present your witnesses first, after the opening statements. Your witnesses should probably include:

  • you, as the Complainant;
  • any co-workers who witnessed the treatment alleged and ideally who support your claims of discrimination and/or retaliation;
  • your doctors (especially important in disability cases, but also important as to damages in other cases); and,
  • your family members (to most often testify to damages, such as pain and suffering).

Hearsay is allowed in administrative proceedings.

After you call all of your witnesses, the Agency will call witnesses, likely including the named RMOs. You have a right to properly cross-examine all Agency witnesses, as the Agency has with you and your witnesses. After the Agency witnesses testify, you are given an opportunity for rebuttal. During rebuttal, you should clear up any discrepancies raised in the Agency’s testimony, either through your testimony or the testimony of witnesses.

Both parties may use physical documents or things at the hearing, as long as the parties comply with the AJ’s rules in notifying the AJ of the evidence and getting the AJ’s approval. Each party is given an opportunity to do short closing arguments or written briefs instead of oral closing arguments.

14. What happens after the hearing is over?

After the hearing, the AJ may make a bench decision, which is an oral decision on the record. Otherwise, the AJ will issue a written decision. The written decision must then be accepted or rejected by the Agency in a Final Agency Decision (FAD). After the FAD is issued, you as the Complainant have the opportunity to appeal the decision to the Equal Employment Opportunity Commission (EEOC) Office of Federal Operations. Instructions for such appeals should be contained in the FAD. For more information, please see the EEOC’s Federal EEO Complaint Processing Procedures.

15. Can I file a lawsuit if I am not happy with the EEOC’s resolution of my case?

Yes. You can file a federal court lawsuit if one of the following conditions are present:

 180 days have passed since you filed your formal EEO complaint and the EEO investigation has not been completed.

 You receive a Report of Investigation on your EEO complaint and you choose to file a lawsuit rather than request a final agency decision or request a hearing with an EEOC Administrative Judge.

 You requested an EEOC Administrative Judge hearing and the AJ issued a decision against you or the AJ issued a decision in your favor, but it was rejected by the Agency. In either case, you will have 90 days from the date of the final agency decision based on the EEOC AJ’s decision to file a lawsuit in federal court.

 If you file an appeal of the final agency decision or the EEOC AJ’s decision to the Office of Federal Operations of the EEOC, and the OFO/EEC finds against you, you will have 90 days from the date of the OFO/EECO decision to file a federal court lawsuit.

If you file a federal court lawsuit, it is a “de novo” review by the court. This means that the case starts over, no matter what the decisions may have been by the EEOC AJ or the Agency. You will have the opportunity to conduct discovery and prove your case in a jury trial.

16. Should I get a lawyer?

Getting legal advice as early as possible when you believe you have been discriminated against or retaliated against is highly recommended. A legal consultation with an attorney experienced in federal employee claims will evaluate your facts under current laws and court decisions and give you the pros and cons of your case. There are many factors that go into a case evaluation. You may be going through this EEO process once or twice in your career, whereas the agency personnel and EEO representatives do this every day. If you are not informed on how the process works and what evidence is needed, the agency and management may create a record to defend against your case and you may not understand how to find and present evidence in your favor.

Getting a consultation does not mean the attorney must represent you throughout the process or in federal court. Knowing the strengths and weaknesses of your case as early as possible can save you money and effort and can assist you in documenting and finding the evidence you need to win your EEO case or to find reason to withdraw your EEO case. Finally, if you win your case before the EEOC AJ or in federal court, your attorney’s fees will be paid by the agency. In most settlements, your fees are also paid by the agency. Many attorneys will represent federal employees on a contingent fee basis if there are sufficient facts to support your EEO claims.

 

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5 Signs of Age Discrimination

These signals may mean you’re a target at work

Five Signs You Face Age Discrimination, Are you being Targeted at work

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Feel like there is a target on your back? Here are five signs that your job might be in jeopardy.

Age discrimination is becoming more common as a nation of working boomers grows older. Experts on career counseling and age discrimination picked five telltale signs to watch for.

1. Older workers are being fired or offered buyouts, and younger ones are being hired.

The most common term for this is “culture fit.” But what it really means is that a company is bound and determined to hire younger, less expensive workers who are basically about the same age with the same mind-set, says Karen Southall Watts, a career coach in Vancouver, Canada. “When a company hires 30 versions of the same person over and over again, I find this a big red flag.”

2. You are reassigned to unpleasant duties.

Job reassignment can be the clearest sign that they’re trying to replace you or get you to quit, advises Suzanne Lucas, a human resources expert who blogs about the workplace. How to avoid this? “As you get older, what you need to be careful about is to be continually growing and improving on the job,” she says.

3. You start hearing tacky comments about your age.

If your boss has recently asked you, even in a friendly way, “Say, when are you going to retire?” — that’s a strong sign that it’s on the boss’s mind, says Laurie McCann, a senior attorney at AARP Foundation Litigation. Prepare a savvy response that protects you and your job, advises Jane Rasmussen, an employment law attorney in Fairfax, Va. Be clear that you have no plans to retire and that you intend to work there for a long time. If you can grab a friendly coworker to witness the conversation, that can be helpful in case the issue evolves into a lawsuit. Send an email to your boss that summarizes the conversation the two of you had about your “retirement” and remind the boss you have no such plans.

4. You stop getting raises.

This can be tricky, McCann says. If your younger coworker who had a stellar year gets a raise, but you had a so-so year and did not get a raise, that is not age discrimination, she says. But if you had a good year and still get coal in your stocking instead of a raise, that may well be age discrimination — unless you’re already at the top of the pay scale.

5. Your performance reviews tank.

This is particularly common when a company gets a new CEO, or when you get a new (often younger) boss who decides it’s time to get rid of the older, more expensive workers. “When you suddenly get 1s instead of 4s on your performance reviews, you are in serious trouble,” warns Robin Ryan, a career counselor and author of Over 40 and You’re Hired! Start compiling evidence early, and consider seeking help from an employment lawyer. “Courts are very suspicious of this kind of thing,” McCann adds. “You don’t suddenly become a bad employee.”

Bruce Horovitz, a former USA Today reporter and Los Angeles Times marketing columnist, is a freelance writer.

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What Is Age Discrimination in the Workplace?

Why Age Discrimination Must Be Avoided by Employers in Any Situation

older worker

Age discrimination is an adverse work treatment of an employee based on a class or category that the employee belongs to—employees over age 40—rather than on the employee’s individual merit.

Age discrimination is unlawful in any phase of employment including job postingsjob descriptions, interviews, hiring, salaries, job assignments, merit increasesperformance management and evaluation, training, disciplinary actionspromotionsdemotions, benefits, employment termination, and layoffs.

Any action that an employer takes that adversely affects a disproportionate number of employees over 40 is also age discrimination. In fact, according to the U.S. Equal Employment Opportunity Commission (EEOC), “the ADEA allows employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or younger.”

Practicing Non-Discriminatory Behavior During a Layoff

To provide an example of the need to avoid age discrimination, in a layoff situation, in a mid-sized manufacturing company, the most significant discussion centered on how to do the layoff properly and legally. The employment law attorney was extremely concerned that no disparate treatment occurred in the matter of who was selected for the layoff. (A layoff is definitely one of the instances in which you will want to hire an employment law attorney so you act legally.)

This meant that the classifications of every potentially laid-off employee had to be checked for possible discrimination. This meant that the employer had to check the ages of employees, their race, gender, and all of the areas of potential discrimination to make certain that no one class of employee was more adversely affected by the layoff decisions.

Because many of the employees were long-term people, age discrimination was the biggest concern. Age discrimination lawsuits, while not as frequent as they were from 2008 to 2012 when the economy was so bad, are still high and going higher rapidly in the new environment of employee awareness, front page news stories, the lightning spread of information on social media. Employers do not want to become involved with the EEOC.

At the end of the story, to avoid even the appearance of age discrimination in the layoff, a younger white male employee was selected for the layoff. The company retained an over age 50 male employee instead.

The company also decided to eliminate a whole department. Most of the employees in the department were over age 40. But, by eliminating the department, age discrimination culpability was also avoided.

The ADEA also prohibits age discrimination among employees who are older than 40. As an example, employers may not discriminate against a 60-year-old employee in favor of a 50-year-old employee.

The ADEA and its age discrimination prohibition apply to all private employers who have 20 or more employees and to Federal, state and local governments. Age discrimination is also prohibited in employment agencies and labor organizations.

More Facts About Age Discrimination

In the hiring process, requiring the age of applicants must only be for a “bona fide occupational qualification.” This means that the employer must demonstrate that age is a reasonable question essential to the operation of the business.

Employers also need to steer clear of the more subtle forms of potential age discrimination. While you may not choose to ask for age or date of birth on your employment application, doing the math based on when your prospective employee graduated is potentially discriminatory. You would discriminate if you used this information to eliminate a candidate.

The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to employees over 40. There are exceptions available in certain circumstances as long as the cost of insuring older employees is the same as insuring younger employees.

In situations involving early retirement offersemployment buyouts, and other exit incentive programs for older workers, work closely with the EEOC and an employment law attorney.

Age Discrimination Prevalence

According to the EEOC, “It is difficult to measure with any accuracy the prevalence of discrimination in the workplace. One indicator of the prevalence of age discrimination is based on the research of the perception of age discrimination by older workers in surveys. Another indicator is age discrimination claims. Most discriminatory and harassing conduct is unreported which means charges filed with federal and state enforcement agencies represent a fraction of the likely discrimination that occurs in the workplace.”

Overall, EEOC resolved 97,443 charges and secured more than $482 million for victims of discrimination in private, federal and state and local government workplaces. The agency reduced the workload of pending charges by 3.8 percent to 73,508 — the lowest pending charge workload in three years. The agency responded to over 585,000 calls to its toll-free number and more than 160,000 inquiries in field offices, reflecting the significant public demand for EEOC’s services. EEOC has previously released the fiscal year 2016 highlights.”

The Bottom Line

Too many older Americans face age discrimination based on stereotypes and outdated assumptions about age and the capability to work. People tend to think of older workers as slower, mistake-prone, and generally worn out. So, age discrimination is too common and too accepted in today’s workplace. Employers need to become much more conscious of the potentially devastating effects of practicing even subtle discrimination based on an individual’s age.

 

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This is not your father’s EEOC.

By Bryan A. Chapman, Esquire

The Equal Employment Opportunity Commission (EEOC) was created in 1965 as a result of the Civil Rights Act of 1964 becoming law.  The Civil Rights Act of 1964 marked the end of the 100 year old Jim Crow era in the United States.

Under Jim Crow, Southern states enacted laws that made segregation mandatory in the everyday lives of blacks and whites.  Jim Crow laws were designed to prevent blacks from advancing both socially and economically.  In the Northern states, blacks faced discrimination and segregation in hiring, housing, and education.

The EEOC’s purpose is to protect workers from workplace discrimination and its mandate is to investigate worker’s complaints.  In EEOC’s early years, discrimination and segregation in hiring were routine practices in both Southern and Northern states.  Workplace discrimination occurred in plain sight.  Workers could rely on EEOC to investigate their complaints.  And, these investigations could lead to out-of-court settlements.

Today, almost sixty years later, workers can no longer rely on EEOC to investigate their complaints.  For decades, EEOC has had a backlog of cases because Congress has not provided the funding it needs to investigate an ever increasing number of discrimination complaints.  In order to cope with its backlog, EEOC is prioritizing cases, which means an ever increasing number of cases are dismissed before they can be investigated.  This practice leaves many workers out in the cold.

Workplace discrimination is difficult to prove.  Workplace discrimination is no longer occurs in plain sight as it did in the 1960’s.  Employers take measures to avoid costly discrimination lawsuits.  Outside consultants and HR personnel train management on how to prevent workplace discrimination, as well as, how to cover up workplace discrimination when it occurs.

The employment laws strongly favors employers over workers.  For instance, the employment-at-will doctrine provides employers with a lot of protection against allegations of discrimination.  The doctrine says that an employer can termination (which includes denial of promotion, demotion, and undesirable reassignment) a worker at any time and for any reason, good or bad, provided it is not done for a discriminatory reason.  This means that a worker is burdened with proving that his termination was a direct result of discrimination.

When an employer decides to terminate a worker, it generally places the worker under heightened scrutiny for a period of time in order to generate a paper trail of deficient job performance.  The paper trail is a defense against allegations that the termination was discriminatory.  Furthermore, employers routinely deny all allegations of discrimination.  It means that in the absence of a “smoking gun” workplace discrimination is difficult to prove.

Most workers are aware that federal statutes prohibit workplace discrimination based on race, sex, national origin, religion, age, and disability.  Unfortunately, federal statutes give workers a false sense of security.  The outcome of an actual discrimination case depends on the applicable case law of a particular locality and relevant facts that may be in dispute.  Only, an experienced lawyer can gain access to and make effective use of this kind of information.  As a result, workers who files discrimination complaints with EEOC, without consulting an experienced lawyer, are generally out of their depth.

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Do Companies Try to Settle Harassment Claims Out of Court?

by Ruth Mayhew; Reviewed by Michelle Seidel, B.Sc., LL.B., MBA; Updated March 11, 2019

Do Companies Try to Settle Harassment Claims Out of Court?

Harassment lawsuits are costly, so out-of-court settlements save employers the time and expense of defending their employment practices. The U.S. Equal Employment Opportunity Commission, the agency that enforces employment laws, reports 26,699 charges of workplace harassment during fiscal year 2018. Approximately 7 percent of those claims were settled, and the EEOC recovered more than $134 million in damages, much of it through out-of-court settlements on behalf of employees who filed harassment claims. Out-of-court settlements often are more attractive to employers than gambling with a potentially sympathetic jury.

Early Stage Settlement

When an employee files an initial complaint about workplace harassment, it’s rare that the company is thinking about settlement at this point, unless there have been similar incidents in which the company has been cited or sued for harassment claims found to have merit. At this point, in addition to considering settling claims, the company should also consider organizational changes and mandatory leadership and employee training to eliminate unlawful workplace behavior and unfair employment practices.

Workplace Harassment Investigations

A human resources department staffer, outside consultant or a lawyer typically investigates workplace harassment claims. The person assigned to the investigation must know what constitutes workplace harassment vis-à-vis a thorough understanding of employment laws, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, the National Labor Relations Act and the Taft-Hartley Act. Throughout the fact-finding process, with correct application of statutory law and knowledge of past practices, settlement may be part of the discussion among decision makers in the company.

Investigative Process and Goals

The goal of every workplace investigation is to determine whether the harassment occurred, and if so, to what extent the employer is liable. During the course of an investigation, it might become clear that settling the harassment claim is a wise move – particularly if the investigator discovers evidence of egregious conduct that would make any jury decide in the employee’s favor. But if the investigation reveals that the company’s employment practices are defensible, the organization may decide that settlement is premature.

Impending Litigation Outside of EEOC Activity

Some harassment claims that the EEOC investigates are found to have merit, and even though an employee files a charge of discrimination with the EEOC, she can move forward with legal representation and seek redress through the courts. An employee has to file a charge of discrimination with the EEOC first, but she doesn’t have to wait until the agency completes its investigation to file a lawsuit – she can request a right-to-sue letter from the EEOC if she wants to move forward with litigation. In some instances, employees immediately retain legal counsel with the desire to press forward with litigation as quickly as possible.

The decision concerning whether to file a lawsuit before the EEOC has finished investigating the claim is up to the employee and her legal counsel, if any, and in some cases, whether the employer’s actions were especially egregious. Once a formal lawsuit is filed and the discovery process is underway to uncover details about the employee’s claim, the company’s investigative approach and past practices, the cost of litigation compels some employers to consider out-of-court settlement before the trial begins.

Costs to Settle a Claim

The cost to settle a harassment claim out of court can be far lower than damages that a court might award. Small businesses that lose harassment lawsuits could be liable for upwards of $50,000 in damages – and larger organizations, up to $300,000. In addition, depending on how the employer postures its case, a jury could award much higher amounts for punitive damages – some headlines report jury awards in the millions of dollars. In addition, employers consider the intangible costs of fighting a harassment suit instead of settling it.

Settling harassment claims can save the organization from bad publicity, which can lead to business losses, plummeting employee morale and a sullied reputation in the business community.

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How Does an EEOC Complaint Hurt an Employer?

by Cam Merritt; Reviewed by Michelle Seidel, B.Sc., LL.B., MBA

Updated March 1, 2019

When the federal Equal Employment Opportunity Commission (EEOC) receives a complaint that an employer illegally discriminated against its workers, that employer may be in for a rough ride. The ensuing months can bring time-consuming official requests for information, intrusive investigations, large legal bills, negative publicity and, if the complaint is upheld, expensive damages.

The EEOC Ground Work

The EEOC investigates complaints of discrimination based on race, color, national origin, religion, sex, age and disability. In general, only employers with 15 or more employees are subject to EEOC oversight. Any employee can file an EEOC complaint, not just those who have been victims of discrimination.

Inspection Procedure

Regardless of whether an EEOC complaint has merit, the employer is going to have to invest time, effort and sometimes money to deal with it. When a worker files a complaint, the EEOC notifies the employer and asks it for a “statement of position,” in which it offers its side of the story. The EEOC follows up with a formal request for the employer to supply documents and other information relevant to the case, such as copies of company human resources policies and personnel files.

EEOC staff may also visit the workplace, something that the agency itself acknowledges can be disruptive to company operations. While on site, the staff may ask the employer to make employees available for interviews. The employer can say no, but the EEOC can still contact them away from work – without the employer’s knowledge or permission.

A Typical Investigation Proceedings

All of this activity so far is simply fact-finding; the EEOC will use the information it turns up to determine whether the complaint merits further action. If so, it moves on to a formal investigation, which will chew up more time and money. The investigators have the authority to subpoena company documents, prohibit the employer from destroying any documents of any kind without permission and compel employees to provide statements.

The EEOC says the typical investigation lasts six months. If the employer doesn’t have an attorney involved in the case by now, it needs one to advise management of its rights and responsibilities. Robin Shea, a partner at the national employment law firm Constangy Brooks & Smith, says employers operating without a lawyer can turn even a seemingly trivial complaint into a major investigation by unintentionally admitting that a violation occurred or providing too much information.

Mediation or Costly Litigation

An employer may be able to avoid a formal EEOC investigation by agreeing to try to resolve the matter through mediation or by settling the complaint. Doing so will probably bind the employer to changing its policies and procedures, and the employer may have to compensate employees who complained. But the employer doesn’t have to admit any guilt or liability, and any agreements can remain confidential.

If the employer declines to mediate, or if the EEOC concludes that the case is too serious for mediation, the EEOC may sue the employer. Even if the EEOC decides not to sue – or take any action – the employees who filed the complaint reserve the right to sue. Regardless of whether the EEOC or the worker does the suing, litigation means not only considerable legal expense for the employer, but also bad publicity.

Penalties and Indemnifications

Penalties for an EEOC complaint – whether resolved through mediation, settlement or litigation – start with providing relief for workers who suffered discrimination. That includes paying workers’ back wages, reinstating them or even promoting them, depending on the nature of the complaint. Employers can be ordered to pay complainants’ legal and court costs. Things get worse if the case goes to trial and the employer loses.

The court can award compensatory and punitive damages to the employees who filed the complaint. Such damages are capped at $50,000 per person when the defendant is an employer with 15 to 100 employees; $100,000 for employers with 101 to 200 employees; $200,000 for 201 to 300 employees; and $300,000 for more than 300 workers. However, in cases of age discrimination and of sex discrimination in pay, the damages are limited to an amount equal to the complaining employees’ lost wages.

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