Big Mistakes Workers Make When They File Discrimination Claims

By Bryan A. Chapman, Esquire

Workplace discrimination is commonplace.  Federal statutes protect workers from discrimination based on their race, sex, national origin, religion, age, and disability.  The Equal Employment Opportunity Commission (EEOC) was created in 1965 to enforce the federal laws against workplace discrimination.  Unfortunately, for the past several decades, the EEOC has been ineffective in protecting workers from discrimination due to inadequate funding from Congress.

The EEOC is unable to investigate an increasing number of the discrimination claims it receives.  These claims are eventually dismissed by EEOC without being investigated.  Workers receive a “Right-to-Sue” letter that instructs them to file a discrimination lawsuit in federal court within 90 days.  The vast majority of workers who receive “Right-to-Sue” letter simply give up.

Even if EEOC is no longer an effective enforcer of federal workplace discrimination laws, the ever increasing number of EEOC claims signal to the Congress that workplace discrimination continues to be a major problem.  One can only hope that the growing number of EEOC claims will eventually lead to reform of the federal workplace discrimination laws.

In the meantime, workers who file discrimination claims with the EEOC have to be well prepared and strategic if they want to succeed.  Workers need sound legal advice prior to filing a claim.  The outcome of any discrimination claim depends on specific workplace discrimination laws and how they are applied to the facts of a particular case.  Workers have to convince EEOC that their claims are legally sound and worthy of being investigated.  When EEOC investigates claims, the intrusive nature of these investigations can convince employers to settle the claims.

Most workers who file discrimination claims are simply unprepared.

I. Unrealistic Expectations

Workers who file discrimination claims with the Equal Employment Opportunity Commission (EEOC) are generally unaware of their chances of success.  Many have the misguided belief that because their claim seems morally justified they will win.

Most workers are familiar with accident claims where fault is immediately determined, based on who caused the accident, and the only issue is the settlement amount.  Accident claims are settled quickly because insurance companies find it profitable to do so.  Insurance companies know that no one wants to get into an accident.

Insurance companies also insure employers against discrimination claims.  Employers and their insurers generally want discrimination claims to drag on for as long as possible.  They know that as time passes workers: 1) get frustrated and give up, 2) accept smaller settlements, or 3) have their claims dismissed.  Furthermore, this practice discourages other workers from pursuing discrimination claims.

Insurance companies hire private law firms to defend the employers they insure.  These law firms usually specialized in defending employers against discrimination claims.  These law firms generally apply a “scorched earth” approach.  All discrimination claims are vigorously contested and all allegations are denied.  And, the workers are portrayed as bad or incompetent employees.  Litigation can drag on for years and become extremely expensive.  As a result, only 3% of workers who file discrimination claims with EEOC receive a favorable decision from the agency.  And, workers who file discrimination claims in federal court win only 1% of the time.

II. Failure To Consult An Experienced Attorney

Most workers who file discrimination claims with EEOC do so without consulting an experienced attorney.  These workers believe that EEOC will champion their cases against their employers, which is simply not the case.

Workers need sound legal advice prior to filing a discrimination claim.  There are many employment actions that employers can take against workers that seem unfair but do not violate federal workplace discrimination laws.  For instance, employment-at-will allows employers to terminate workers at any time and for any reason.

Before filing a discrimination claim, workers need to know whether or not they have legally valid discrimination claims.  If workers have legally valid discrimination claims, they need effective strategies that allow their claims to succeed.

Most workers may be aware of federal statutes that prohibit discrimination in the workplace based on race, sex, national origin, religion, age, and disability.  But, they are unaware of the hundreds of court decisions that actually govern what does and does not constitute workplace discrimination when applied to the facts of their cases.  Filing a workplace discrimination claim without first obtaining sound legal advice is like coming to a gunfight blindfolded.

III. Expecting the Employer to Adopt Their Point Of View

Many loyal workers file discrimination claims with EEOC because they feel they are being harassed by a supervisor.  In many cases, they are unable to sleep at night and are fearful of being fired.

Some workers believe that it will be their word against the word of an unpopular supervisor.  They may actually believe that the employer will adopt their point of view once the supervisor’s alleged misdeeds are exposed.

Unfortunately, employers turn discrimination claims over to private law firms.  These law firms vigorously defend employers regardless of whether or not workplace discrimination has occurred.  All discrimination claims are contested and all allegations are denied.  These lawyers investigate workers and portray them as bad or incompetent employees.  Some workers become paralyzed with fear and believe that they are going to be eventually fired.  An experience attorney can calm client’s fears by preparing them for these personal attacks.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

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Filing a Discrimination Claim – Virginia

Employment discrimination is the practice of unfairly treating a person or group of people differently from other people or groups of other people at work, because of their membership in a legally protected category such as race, sex, age, or religion.  Each state has passed laws and rules to protect your workplace rights: this page covers Virginia employment discrimination.  The purpose of the Virginia Human Rights Act is to protect workers in Virginia from unlawful discrimination in employment. Read below to learn more about Virginia employment law and how the law protects you.

1. What kinds of discrimination are against state law in Virginia?

The Virginia Human Rights Act makes it illegal for an employer to discriminate on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status or disability (physical or mental).

2. How do I file a discrimination claim in Virginia?

A discrimination claim can be filed either with the state administrative agency, the Virginia Division of Human Rights (DHR) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.

The Virginia anti-discrimination statute covers some smaller employers not covered by federal law. Therefore, if your workplace has between 6 and 14 employees, you should file with the DHR, as the EEOC enforces federal law which covers only employers with 15 or more employees. If your workplace has 15 or more employees, you may file with either agency.

To file a claim with the DHR, contact its office below. More information about filing a claim with the DHR can be found at the DHR website.

Division of Human Rights
202 North Ninth Street
Richmond, VA 23219
Phone: (804) 225-2292

To file a claim with the EEOC, contact your closest local EEOC office below. More information about filing a claim with the EEOC can be found at the EEOC Filing a Claim page.

Norfolk Area Office
Federal Building, Suite 739
200 Granby Street
Norfolk, VA 23510
Phone: 757-441-3470
TTY: 757-441-3578

Richmond Area Office
400 N. Eight Street
Suite 350
Richmond, VA 23230
Phone: 800-669-4000
TTY: 800-669-6820

Washington Field Office
131 M St., NE
Fourth Floor Suite 4NWO2F
Washington, D.C. 20005
Phone: 1800-669-4000
TTY: 1800-669-6820

EEOC has launched an online service that enables individuals who have filed a discrimination charge to check the status of their charge online.  This service provides a portal to upload and receive documents and communicate with the EEOC, allowing for a faster transmitting period.  Those who have filed a charge can access information about their charge at their convenience, and allow entities that have been charged to receive the same information on the status of the charge.  All of the EEOC offices now use the Digital Charge System.  If you file on or after September 2, 2016, the Online Charge Status System is available for use.  The system is not available for charges filed prior to this date or for charges filed with EEOC’s state and local Fair Employment Practices Agencies. The system can be accessed at the EEOC website. If you do not have internet or need language assistance, you may call the toll-free number at 1-800-669-4000. For additional help, you may also call the toll free number to retrieve the same information provided in the Online Charge Status System.

3. What are my time deadlines?

Do not delay in contacting the DHR or EEOC to file a claim. There are strict time limits in which charges of employment discrimination must be filed. To preserve your claim under state law, you must file with the DHR (or cross-file with the EEOC) within 180 days of the date you believe you were discriminated against. To preserve your claim under federal law, you must file with the EEOC (or cross-file with the state agency) within 300 days of the date you believe you were discriminated against. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the state and federal administrative agencies.

You may also wish to check with your city or county to see if you live and/or work in a city or county with a local anti-discrimination law, or “ordinance.” Some cities and counties in Virginia have agencies that process claims under local ordinances and may be able to assist you. These agencies are often called the “Human Rights Commission,” “Human Relations Commission,” or the “Civil Rights Commission.” Check your local telephone directory or government website for further information.

4. What happens after I file a charge with the EEOC?

When your charge is filed, the EEOC will give you a copy of your charge with your charge number. Within 10 days, the EEOC will also send a notice and a copy of the charge to the employer. At that point, the EEOC may decide to do one of the following:

  • Ask both you and the employer to take part in a mediation program
  • Ask the employer to provide a written answer to your charge and answer questions related to your claim, then your charge will be given to an investigator
  • Dismiss the claim if your charge was not filed in time or if the EEOC does not have jurisdiction

If the EEOC decides to investigate your charge, the EEOC may interview witnesses and gather documents.  Once the investigation is complete, they will let you and the employer know the result. If they decides that discrimination did not occur then they will send you a “Notice of Right to Sue.” This notice gives you permission to file a lawsuit in a court of law. If the EEOC determines that discrimination occurred then they will try to reach a voluntary settlement with the employer. If a settlement cannot reached, your case will be referred to the EEOC’s legal staff (or the Department of Justice in certain cases), who will decide whether or not the agency should file a lawsuit. If the EEOC decides not to file a lawsuit then they will give you a “Notice of Right to Sue.”

How long the investigation takes depends on a lot of different things, including the amount of information that needs to be gathered and analyzed. On average, it takes the EEOC nearly 6 months to investigate a charge. A charge is often able to settle faster through mediation (usually in less than 3 months).

5. How can I or my attorney pursue a claim in court in Virginia?

If your case is successfully resolved by an administrative agency, it may not be necessary to hire an attorney or file a lawsuit (to resolve your case, you probably will be required as to sign a release of your legal claims). If your case is not resolved by the DHR or EEOC and you may want to continue to pursue the matter, you will need to pursue your claim in court. A federal employment discrimination case cannot be filed in court without first going to the EEOC, as discussed above, and having the EEOC dismiss your case. This process is called “exhaustion” of your administrative remedy. Similarly, before you can proceed with a lawsuit based on your state discrimination claim, you must file with the DHR.

Because Virginia’s state anti-discrimination statute does not permit the compensatory (emotional pain and suffering) and punitive damages (intended to punish the employer) that are allowed under federal law, and severely limits attorneys fees and back pay awards, many Virginia attorneys choose to file employment discrimination cases in federal court using federal law. A case filed in state court using federal law may be subject to removal, which means that a defendant employer requests to move the case to federal court because it involves a federal statute, such as Title VII or the ADEA.

Once the EEOC issues the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” (Form 161), only then can you file a case based upon your federal claim. A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. (Be sure to mark down that date when you receive the notice.) A lawsuit based on your state claim must be filed within 180 days from the date you believe you were discriminated against. An investigation by the DHR does not delay this deadline. These deadlines are called the “statute of limitations”. Please be aware, however, that you may have other claims arising out of your employment relationship which have shorter statutes of limitations.

If you have received one of these agency dismissal notices, do not delay consulting with an attorney. If your lawsuit is not filed by the deadline, then you may lose your ability to pursue a discrimination case.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



Filing a Discrimination Claim – Maryland

Employment discrimination is the practice of unfairly treating a person or group of people differently from other people or groups of other people at work, because of their membership in a legally protected category such as race, sex, age, or religion.  Each state has passed laws and rules to protect your workplace rights: this page covers Maryland employment discrimination.  The purpose of Maryland antidiscrimination law is to protect workers in Maryland from unlawful discrimination in employment. Read below to learn more about Maryland employment law and how the law protects you.

1. I live in Maryland. What kinds of discrimination are against state law?

Maryland law makes it illegal for an employer to discriminate on the basis of race, sex, , color, ancestry or national origin, age, religion, marital status, sexual orientation, genetic identity, gender identity, disability, or genetic information.

You should also check with your city or county to see if you live and/or work in a city or county with a local anti-discrimination ordinance. Some cities and counties in Maryland have agencies that process claims under local ordinances and may be able to assist you. These agencies are often called the “Human Rights Commission,” “Human Relations Commission,” or the “Civil Rights Commission.” While some county information is included below, you may also need to check your local telephone directory or government web site for further information. In addition, if you work for the state government or a local government, special anti-discrimination laws and remedies may apply to you.

In Howard County, it is illegal for an employer to discriminate on the basis of race, creed, religion, handicap, color, sex, national origin, age, occupation, marital status, political opinion, sexual orientation, personal appearance, familial status or source of income. In Montgomery County, it is illegal for an employer to discriminate on the basis of race, color, religion, ancestry, sex, age, national origin, marital status, handicap, sexual orientation, and genetic status. In Prince Georges County, it is illegal for an employer to discriminate on the basis of race, creed, color, sex, age, national origin, occupation, marital status, political opinion, personal appearance, physical or mental handicap, criminal record, or sexual orientation. If you live outside these counties, check with your city or county for further information.  In Baltimore County, it is illegal for an employer to discriminate on the basis of race, creed, religion, physical or mental handicap, color, sex, national origin, age, and marital status.  In Frederick County, it is illegal for an employer to discriminate on the basis of race, color, national origin, sex, age, marital status or disability.

2. How do I file a discrimination claim in my state?

In Maryland, a discrimination claim can be filed either with the state administrative agency, the Maryland Commission on Civil Rights (MCCR) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.

The Baltimore Community Relations Commission, Howard County Office of Human Rights, Montgomery County Human Relations Commission, and Prince George’s County Human Relations Commission all also have work-sharing agreements with the EEOC, which means that you may also file with one of these local agencies to preserve your claim under local, state and federal law.

Some county antidiscrimination statutes (Prince George’s, Montgomery and Howard) cover some smaller employers not covered by federal law. Therefore, if your workplace has fewer than 15 employees, you should file with your county agency, as the EEOC enforces federal law, which covers only employers with 15 or more employees. (Maryland law also only covers workplaces of 15 or more employees.) If your workplace has 15 or more employees, you may file with the county agency, state agency, or the EEOC; however, some attorneys recommend that you file with either the county agency (if one exists) or the EEOC (if there is no county agency).

To file a claim with the MCCR, contact the closest office below. More information about filing a claim with MCHR can be found at the MCCR website.

Maryland Commission on Civil Rights
William Donald Schaefer Towers
6 Saint Paul Street
Suite 900
Baltimore, MD 21202
Phone: (410) 767-8600
Toll Free: (800) 637-6247
TTY: (410) 333-1737
Fax: (410) 333-1841
Howard County Office of Human Rights
6751 Columbia Gateway Drive
Suite 239
Columbia, MD 21046
Phone: (410) 313-6430
Fax: (410) 313-6468
Montgomery County Human Relations Commission
21 Maryland Ave, Suite 330
Rockville, MD 20850
Phone: (240) 777-8450
Fax: (240) 777-8460
TTY: (240) 777-8480
Prince George’s County Human Relations Commission (HRC)
14741 Governor Oden Bowie Drive
Suite L202
Upper Marlboro, MD 20722
Phone: (301) 883-6170
Fax: (301) 708-8244
Fredrick County Human Relations Department
401 Sagner Ave.
Frederick, MD 21704
Phone: (301) 600-1063
Fax: (01) 600-1636
Baltimore County Human Relations Commission
Drumcastle Government Center
6401 York Road, 1st Floor
Baltimore, MD 21212
Phone: (410) 887-5917
TDD: (410) 339-7520
Fax: (410) 877-6079

There are also MCCR offices in Hagerstown (Western Maryland), Cambridge, Salisbury (Eastern Shore), and Leonardtown (Southern Maryland).

To file a claim with the EEOC, contact your local EEOC office below. More information about filing a claim with the EEOC can be found at the EEOC How to File page.

Baltimore District Office
City Crescent Building
31 Hopkins Plaza
Suite 1432
Baltimore, MD 21201
Phone: (410)209-2237
TTY: 1-800-669-6820

EEOC has launched an online service that enables individuals who have filed a discrimination charge to check the status of their charge online.  This service provides a portal to upload and receive documents and communicate with the EEOC, allowing for a faster transmitting period.  Those who have filed a charge can access information about their charge at their convenience and allow entities that have been charged to receive the same information on the status of the charge.  All of the EEOC offices now use the Digital Charge System.  If you file on or after September 2, 2016, the Online Charge Status System is available for use.  The system is not available for charges filed prior to this date or for charges filed with EEOC’s state and local Fair Employment Practices Agencies. The system can be accessed at the EEOC website. If you do not have internet or need language assistance, you may call the toll-free number at 1-800-669-4000. For additional help, you may also call the toll free number to retrieve the same information provided in the Online Charge Status System.

3. What are my time deadlines?

Do not delay in contacting the MCCR, EEOC or your county agency to file a claim. There are strict time limits in which charges of employment discrimination must be filed. In order for these to act on your behalf, you must file with the MCCR (or cross-file with the EEOC) within six months or the EEOC (or cross-file with the state agency) within 300 days of the date you believe you were discriminated against. Some of the county filing deadlines are as follows:

  Howard County – Suit cannot be filed sooner than 45 days after administrative charge is filed with Howard County Office of Human Rights and must be filed within 6 months of the alleged discriminatory act.

  Montgomery County – Suit cannot be filed sooner than 45 days after administrative charge is filed with Montgomery County Human Relations Commission and must be filed within 2 years in the state circuit court within 2 years of the discriminatory act.

Prince George’s County – Suit cannot be filed sooner than 45 days after administrative charge is filed with Montgomery County Human Relations Commission and must be filed within 2 years in the state circuit court within 2 years of the discriminatory act.

Baltimore County – Suit cannot be filed sooner than 90 days after administrative charge is filed with Baltimore County Human Relations Commission and must be filed within 2 years in the state circuit court within 2 years of the discriminatory act.

Frederick County – Suit cannot be filed sooner than 180 days after administrative charge is filed with Frederick County Human Relations Commission and must be filed within 2 years in the state circuit court within 2 years of the discriminatory act.

However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible, but if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your discrimination claim with the county, state or federal administrative agencies.

4. What happens after I file a charge with the EEOC?

When your charge is filed, the EEOC will give you a copy of your charge with your charge number. Within 10 days, the EEOC will also send a notice and a copy of the charge to the employer. At that point, the EEOC may decide to do one of the following:

  • Ask both you and the employer to take part in a mediation program
  • Ask the employer to provide a written answer to your charge and answer questions related to your claim, then your charge will be given to an investigator
  • Dismiss the claim if your charge was not filed in time or if the EEOC does not have jurisdiction

If the EEOC decides to investigate your charge, the EEOC may interview witnesses and gather documents.  Once the investigation is complete, they will let you and the employer know the result. If they decides that discrimination did not occur then they will send you a “Notice of Right to Sue.” This notice gives you permission to file a lawsuit in a court of law. If the EEOC determines that discrimination occurred then they will try to reach a voluntary settlement with the employer. If a settlement cannot reached, your case will be referred to the EEOC’s legal staff (or the Department of Justice in certain cases), who will decide whether or not the agency should file a lawsuit. If the EEOC decides not to file a lawsuit then they will give you a “Notice of Right to Sue.”

How long the investigation takes depends on a lot of different things, including the amount of information that needs to be gathered and analyzed. On average, it takes the EEOC nearly 6 months to investigate a charge. A charge is often able to settle faster through mediation (usually in less than 3 months).

5. How can I or my attorney pursue a claim in court in Maryland?

If your case is successfully resolved by an administrative agency, it may not be necessary to hire an attorney or file a lawsuit. If your case is not resolved by the county agency, MCCR or EEOC, however, you may need to pursue your claim in court. A federal employment discrimination case cannot be filed in court without first going to the EEOC, as discussed above, and having the EEOC dismiss your claim. This process is called “exhaustion” of your administrative remedy. Many counties also require exhaustion through the county agency.

Maryland’s employment discrimination code was amended and now allows employees claiming discrimination violations the ability to sue in state court.   Maryland attorneys also have the option to  file employment discrimination cases in state court using county law if you work in Prince George’s, Montgomery or Howard counties. In Baltimore County, there is a right to sue in court if your employer has fewer than 6 employees, and the law limits the damages you can recover. A case filed in state court using federal law may be subject to “removal,” which means that a defendant employer requests to move the case to federal court, because it involves a federal statute, such as Title VII or the ADEA.

The EEOC must first issue the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue,” (Form 161) before you can file a case based upon your federal claim. A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. (Be sure to mark down that date when you receive it.).

In Montgomery, Prince George’s, and Howard counties, you may file a case in court based upon your county claim no later than two years after the discriminatory act occurred, but no sooner than 45 days after filing a complaint with the county agency. Different deadlines may apply in other cities and counties.

These deadlines are called the statute of limitations. If you have received one of these agency dismissal letters, do not delay consulting with an attorney. If your lawsuit is not filed by the deadline, then you may lose your ability to pursue a discrimination case.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com