Understanding Equal Employment Opportunity and the EEOC

Equal Employment Opportunity Commission EEOC document and pen on a table.

Source: HRMorning

What is the EEOC?

The Equal Employment Opportunity Commission, more commonly referred to as the EEOC, is a federal agency that is authorized to enforce and interpret certain federal laws prohibiting employment discrimination against federally protected classes. The EEOC’s authority expands across the entire spectrum of the employment relationship. It covers situations involving hiring all the way through to issues involving separation from employment.

Promotions, workplace harassment, wages, training and benefits and retaliation are just some of the specific areas the EEOC has the authority to address.

The EEOC doesn’t always have the last word on specific employment issues; in fact, courts are free to reject EEOC guidance and interpretations. But that’s not what usually happens. Instead, courts tend to defer to the agency as sort of a subject-matter expert with respect to how federal anti-discrimination employment laws should be interpreted and applied.

A key takeaway from this fact: Knowing the EEOC’s position on a particular issue, as expressed through its guidance or enforcement activities, is a very important step covered employers should take to remain EEOC compliant.

Speaking of covered employers, most employers with at least 15 employees have to comply with the federal laws that the EEOC handles. (An exception applies with respect to the federal law banning age discrimination, which bumps the minimum number up to 20.)

In most instances, employment agencies and labor unions are also covered.

Employees who believe they have been discriminated against in violation of a law enforced by the EEOC can file an administrative charge of discrimination with the agency. The EEOC proceeds by investigating the charge and trying to resolve it without going to court.

If its investigation results in a finding that there has been unlawful discrimination, it tries to negotiate a settlement with the offending employer. If that doesn’t work, it can go ahead and file a lawsuit on the complaining employee’s behalf. But the agency’s resources are limited, and that happens in only a very small percentage of cases.

If the agency’s investigation results in a finding that the employer did nothing wrong, the complaining party can still choose to go to court without the EEOC’s help, subject to certain prescribed time limitations.

The EEOC does much more than just investigate discrimination charges. It also tries to prevent employment discrimination via a number of outreach, technical assistance and education programs.

In addition, it helps federal agencies comply with equal employment opportunity requirements, and it periodically issues detailed guidance concerning specific discrimination-related employment law issues.

It also issues regulations regarding the laws it is authorized to enforce.

The agency has its headquarters in Washington, D.C., and it operates 53 offices nationwide.

EEOC Laws

The EEOC is authorized to interpret and enforce only certain specific federal laws. Essentially, employment discrimination is its domain. Here are the specific federal laws it enforces and what those laws say.

Title VII

Title VII of the Civil Rights Act of 1964, more commonly referred to simply as Title VII, is a federal law banning employment discrimination based on race, color, religion, national origin or sex. Remember that this law covers the entire employment process, from application through separation from employment.

Importantly, it also bans retaliation. More specifically, it prohibits covered employers from retaliating against a person because the person has filed a discrimination charge, complained about discrimination, or participated in an investigation or lawsuit.

Under Title VII, covered employers must accommodate the sincerely held religious beliefs of applicants and employees unless doing so would impose an undue hardship on the employer’s operations.

Title VII’s ban on sex discrimination encompasses a ban on sexual harassment in the workplace. In other words, under Title VII sexual harassment is a form of prohibited sex discrimination.

Physical or verbal conduct of a sexual nature is unlawful under Title VII when it negatively affects the victim’s employment, interferes unreasonably with work performance, or creates a hostile working environment. Under Title VII, the harasser can be a man or a woman, and the victim and the harasser can be of the same sex.

Here’s a fact that may come as a surprise: The victim does not have to be the direct target of the harassment. Instead, it can also be another employee who is also negatively affected by the harassing behavior.

Pregnancy Discrimination Act

Businesswoman in hijab writes ides on adhesive notes on office window

The Pregnancy Discrimination was passed in 1978. It amended Title VII to specifically ban discrimination on the basis of pregnancy.

Under the Pregnancy Discrimination Act, covered employers cannot discriminate against women based on pregnancy, childbirth, or a medical condition that is related to either.

Like Title VII, the Pregnancy Discrimination Act prohibits employers from engaging in unlawful retaliation. Employers cannot retaliate against a person because the person complained of pregnancy discrimination, filed a discrimination charge, or participated in an investigation or lawsuit.

Equal Pay Act

The Equal Pay Act, or EPA, requires covered employers to provide equal pay to men and women who perform equal work in the same workplace.

The jobs don’t have to be identical; instead, the question is whether they are substantially equal. If they are, equal pay is required.

The law doesn’t address salary only. It covers all forms of pay, including things like overtime, bonuses, stock options and profit-sharing.

The EPA bans retaliation against those who have complained of discrimination, filed a discrimination charge, or participated in a discrimination lawsuit or investigation.

Age Discrimination in Employment Act

The Age Discrimination in Employment Act, or ADEA, prohibits covered employers from discriminating against individuals who are 40 years of age or older. The law applies to applicants as well as employees.

What if a covered employer favors an older employee over a younger one, and both employees are over the age of 40? This doesn’t violate the ADEA, according to the EEOC.

The person who discriminates does not have to be younger than 40 to trigger the ADEA’s protections, the agency adds. In other words, for example, an over-40 supervisor can violate the ADEA by discriminating against an over-40 employee.

The statute bars discrimination with respect to all terms and conditions of employment.

It also prohibits age-based harassment. Although isolated offhand comments relating to age probably won’t be enough to violate the law, employers may be on the hook if the harassment either creates a hostile or offensive work environment or leads to an adverse job action such as a demotion or termination from employment.

File this one under the “you may be surprised to learn” category: The harasser doesn’t have to be someone who works for the employer. Instead, it can be a client or customer.

Example: A 60-year-old salesman complains to his manager that a customer keeps telling him that he’s too old for the job and that he should retire. The manager tells the salesman that the company can’t afford to lose the account and that there’s nothing he can do. In this example, the employer may be liable under the ADEA for the harassment.

Americans with Disabilities Act

Two African-American businesswomen having a meeting in a boardroom, one in a wheelchair and one in a chair

Title I of the Americans with Disabilities Act, more commonly referred to as the ADA, prohibits covered employers from discriminating against qualified applicants and employees on the basis of disability.

A “disability” is a physical or mental impairment that substantially limits at least one major life activity, such as breathing, seeing, sleeping and walking. It also includes a record or past history or such an impairment as well as being regarded as having such an impairment.

The law applies to all aspects of the employment relationship, including hiring, firing, compensation, benefits, and all other terms and conditions of employment.

To win an ADA claim, an individual has to do more than show he has a disability; he must also show that he is qualified for the position that he seeks or holds.

A fundamental concept of Title I is that employers are required to make “reasonable accommodations” to help qualified individuals with disabilities do their jobs, subject to the limitation that employers need not make accommodations that would result in what the law calls an “undue hardship” for the employer.

Employers have to understand that the ADA thus goes far beyond merely requiring evenhanded treatment of people with disabilities. Instead, they must take affirmative steps to do things for people with disabilities that they need not do for people without disabilities, such as providing a sign-language interpreter for a deaf applicant during a job interview or providing regularly scheduled breaks to an employee with diabetes so that he can monitor his blood sugar and insulin levels. This is an absolutely critical point for employers to keep in mind.

The ADA has some rules about medical examinations and inquiries. Think of it this way: One rule applies to applicants who have not been offered a position; a second rule applies to people who have been offered a position but have not yet started working; and a third applies to current employees.

Here’s how it shakes out.

Job applicants cannot be asked about the existence, nature or severity of a disability, although they can be asked whether they can perform job functions.

Once an offer is made, the offer can be made contingent on the results of a medical exam – as long as an exam is required for all new employees in similar jobs.

Finally, medical exams can be required for existing workers only if the exams are related to the job and are consistent with the employer’s legitimate business needs.

The ADA doesn’t protect people who use drugs illegally. This includes use of illegal drugs, such as crack cocaine, and illegal use of otherwise legal drugs, such as prescription pain medications.

A final word on the ADA’s employment requirements: Employers may not retaliate against an individual for opposing discriminatory employment practices or for filing a discrimination charge or participating in an investigation, lawsuit or other proceeding relating to the ADA.

Federally Protected Classes

Shot of a diverse group of businesspeople standing against a wall

The laws that the EEOC enforces apply to what are known as “protected classes” of individuals. Employers need to keep in mind that every single applicant and employee is a member of at least one of these protected classes. The classes correspond to the laws that create the protections.

Of course, the fact that an applicant or employee is “protected” does not mean that no adverse action can ever be taken against him. But employers can’t take adverse action against an employee based solely on the fact that he is a member of protected class.

Here are the protected classes created by federal laws barring employment discrimination.

Title VII created the protected classes of race, color, religion, national origin and sex.

These may sound pretty straightforward, but a couple of them are a bit more involved than they may seem to be.

Discrimination based on national origin, for example, includes bias based on the fact that someone is from a particular part of the world or country; because of ethnicity or an accent; or because they look like they are from a certain ethnic background.

Color definitely overlaps with race, but they aren’t the same thing. That means color discrimination can happen between two people of the same race. The EEOC defines “color” discrimination quite literally: The agency says it refers to skin pigmentation, complexion, or skin tone or shade.

It’s a mistake to assume that the protected class of religion encompasses only those who are part of traditional organized religions. The EEOC’s view is that the class also includes others who have “sincerely held religious, ethical or moral beliefs.”

Exactly what is meant by “sex” discrimination has been a hotly debated issue. Some say the class is meant to refer to one’s physical sex at birth as determined by sexual organs. But the EEOC says it’s much broader than that. The agency’s position is that unlawful sex discrimination under Title VII includes discrimination based on sexual orientation and gender identity.

Under the ADEA, the answer of who is protected is much clearer: People who are at least 40 years old are members of the protected class.

The ADA creates the federally protected class of people with disabilities. Under the statute, a “disability” is a physical or mental impairment that substantially limits at least one major life activity, such as breathing, seeing, sleeping and walking. It also includes a record or past history or such an impairment as well as being regarded as having such an impairment.

The term “substantially limits” is construed broadly. Except for ordinary eyeglasses or contact lenses, the determination of whether a person is substantially limited in a major life activity is to be made without reference to the ameliorative effects of mitigating measures like medication.

Pregnancy is another protected class. Under the Pregnancy Discrimination Act, covered employers cannot discriminate against women based on pregnancy, childbirth, or a medical condition that is related to either.

Record-Keeping Requirements

The EEOC has issued regulations that require covered employers to hold on to personnel or employment records for a period of one year. When a worker is let go, his records are to be kept for a year from the termination date.

The ADEA requires employers to keep payroll records for a period of three years. Employee benefit plans as well as written seniority or merit systems are to be kept while the plan or system is in effect and for at least a year after termination.

Records that explain why different wages are paid to employees of opposite sexes in the same establishment are to be kept for at least two years.

EEO-1 Form

The EEOC collects information about employer workforces from employers that have 100 or more employees. Lower thresholds are applicable to federal contractors. Employers report this information annually using the EEO-1 Form.

Information relating to race/ethnicity, gender and job category is used to create a compliance survey.

The provision of the data by covered employers is not voluntary. Instead, the data must be provided.

The agency uses the information that is collected in the reports for a variety of purposes, including enforcement and research.

Handling Discrimination Complaints

Lawyer explaining concepts to a client

When an employee presents an employer with an internal complaint of discrimination or harassment, responding promptly and effectively is essential to avoiding legal liability. Here’s a general roadmap that employers should follow to stay EEOC compliant.

It should go without saying that the employer must take the complaint seriously and not jump to conclusions about whether it has merit. Employers need to keep an open mind about what happened and quickly proceed to conduct an objective, prompt and thorough investigation into whether any EEOC laws have been violated.

Promptness and thoroughness with respect to the investigation are key.

Employers should make sure to show empathy for the accuser, especially in cases involving alleged harassment on the basis of sex or some other protected characteristic, such as disability or age. Showing respect and compassion can greatly assist in achieving a swift and smooth resolution.

In harassment cases, it’s best for employers to speak directly to the accuser first. Then they should talk separately to the accused before following up with direct talks with any witnesses to the alleged harassment.

Employers should make sure to document, document, and then document some more. Every part of the investigation, from beginning to end, should be carefully documented in writing. It’s a good idea for the internal investigator to take notes contemporaneously during face-to-face interviews.

Details regarding the complaint should be kept confidential. This keeps the rumor mill from getting started, and it helps to avoid the polarization that can take place when word gets around that a complaint has been filed.

If there are established internal procedures in place for handling discrimination and harassment complaints, such as those set forth in an employee handbook, employers must ensure that those procedures are followed to a T.

In harassment cases, prompt and appropriate remedial action must be taken if the complaint is substantiated. This is an absolute key to avoiding legal liability. If the investigation stalls or fails to result in appropriate remedial measures when harassment is proven, the employer will likely find itself in big trouble. The appropriate disciplinary response will depend on the nature and severity of the violation.

Employers cannot retaliate against employees because they complained about alleged discrimination or harassment.

Some employees may choose to bypass the internal complaint procedure and go straight to the EEOC with an allegation of unlawful discrimination or harassment.

Employers that get hit with such a charge should begin by carefully reviewing the charge notice that the EEOC will send to them. This “Notice of a Charge of Discrimination” tells the employer that a complaint of discrimination has been filed against it. It’s important to note that this is merely a notice that a charge has been filed and that at this early stage of the case the agency has not yet determined whether the charge has any merit.

The notice typically will ask the employer to provide a response to the charge, also known as a “position statement.” This is essentially the vehicle by which the employer gets to tell its side of the story.

Even if the charge appears to the employer to be meritless, it’s imperative that the employer fully cooperate with the EEOC through the conclusion of the investigation, such as by complying with requests from the agency for additional information.

The EEOC typically offers mediation as a way to resolve the charge confidentially and swiftly. This can be a cost-efficient way to resolve the matter.

EEOC Retaliation Guidance

The EEOC places a lot of emphasis on making sure employees feel free to complain about what they see as discrimination or harassment without fear of being punished by their employer for filing a complaint. That’s why the laws enforced by the agency ban retaliation.

Employees can’t be punished for complaining of discrimination or harassment, cooperating in an investigation or other proceeding, or filing a charge of discrimination or harassment.

Employers should remember that retaliation is a separate offense. In other words, an employer can be liable for unlawful retaliation even if the employee’s underlying complaint turns out to be meritless.

Example: Joe says co-worker Denise has been constantly subjecting him to unwanted sexual advances. Joe’s boss immediately demotes Joe before an internal investigation conclusively shows that Denise did nothing wrong. Joe does not have a valid harassment claim, but his odds of winning a retaliation claim against the employer are high.

To prove unlawful retaliation, an employee has to show that he participated in a protected activity; that he was subjected to a materially adverse job action, such as termination or demotion; and that there is a pretty clear causal connection between the protected activity and the adverse action.

In plain English: The employee must show he was punished for complaining or participating in a proceeding.

There are many things employers can do to reduce the chances that unlawful retaliation will occur in the workplace.

A simple and obvious step for employers to take is to have a clearly written, plain-language policy that specifically prohibits workplace retaliation. The EEOC recommends that employers include the following in the policy:

  • Examples of prohibited acts of retaliation,
  • Steps to take to avoid retaliation, such as guidance about supervisor and managers should deal with employees who have presented claims of discrimination
  • A reporting mechanism, which simply means a way for employees to present allegations of retaliation, and
  • A clear explanation that employees who retaliate can be disciplined.

Another tip from the EEOC: Get rid of any policies that might discourage employees from engaging in protected activities.

For example, a policy that imposes adverse actions on employees who discuss wages might constitute unlawful retaliation, the agency advises.

In addition to having a clear written anti-retaliation provision that is communicated to all employees, employers should keep in mind the crucial role that proper training can play in avoiding unlawful retaliation in the workplace.

Here are a few ideas for employers in that regard, courtesy of the EEOC:

  • Provide anti-retaliation training, including refresher training, to all managers, supervisors and employees. Top management should make it clear that retaliation isn’t an option.
  • Make sure employees know what is meant by “protected activity,” and give examples of how to avoid specific problem situations that might come up.
  • If there has been an issue in the past regarding alleged retaliation, talk about how the situation might have been better handled.
  • Let managers know that feelings of revenge or retribution may arise when an employee presents an allegation of discrimination – and that they cannot act on those feelings.
  • Train managers and HR staffers on how to be both proactive and responsive when employees raise concerns about possible violations.
  • Don’t limit training to office workers only. Instead, include all those working in a range of settings, such as manual laborers and farm workers.
  • Generally encourage a respectful workplace.

Here’s another tip: If an employee files a complaint of discrimination, a built-in part of the employer’s response should be to tell all parties involved about the employer’s policy against retaliation.

It’s also a good idea for higher-ups to check in with involved parties, including supervisors and managers, while a discrimination investigation is pending to provide guidance and prevent unlawful retaliatory responses.

Finally, the EEOC advises employers to have someone review any proposed disciplinary measures to make sure they are not retaliatory in nature. The designated individual can be a management official or in-house counsel, the agency says.

How to Prevent Harassment in the Workplace

Sea of diverse people putting their hands together

Want to take the best path to preventing harassment in your workplace? Here are five core principles the EEOC says employers should keep in mind:

  • Have engaged and committed leadership.
  • Ensure accountability.
  • Maintain strong and complete harassment policies.
  • Make sure you have effective complaint procedures in place.
  • Provide regular training that is tailored specifically to your organization.

Senior leaders must make the message loud and clear: Harassment at our workplace is not tolerated.

How do employers demonstrate this commitment?

One is for senior leaders to clearly and repeatedly make it known that harassment is prohibited.

Employers also need to make sure there are enough resources in place to enable the adoption and implementation of effective strategies that prevent harassment.

Assessment of risk factors is another important step toward preventing harassment, the EEOC says. Of course, when risks are identified steps should be taken to minimize or eliminate them.

A harassment policy should be comprehensive and easy to understand, and there should be a complaint system in place that all employees can readily access. Regular training is important, as are prompt and appropriate remedial disciplinary measures when they are warranted.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer

EEOC Complaints: Everything You Need to Know

Source: UpCounsel

A company with more than 14 employees are subject to the EEOC stepping in. 

What Are EEOC Complaints?

EEOC complaints are handled by the Equal Employment Opportunity Commission (EEOC), the body responsible for investigating discrimination complaints based on religion, race, national origin, color, age, sex, and disability. A company with more than 14 employees is subject to the EEOC stepping in. Every employee has the right to file an EEOC complaint, not only those who feel like they have been discriminated against.

Inspection Procedure

The employer supplies documents and other information relevant to the case when a worker files a complaint. These items include copies of HR policies and any personnel files after the EEOC has followed up with a formal request. Although disruptive to the company and overall operations, the EEOC staff may also visit the office.

During the work day, the staff may ask the employer for employee interviews. The EEOC can still contact employees outside of work without the employer’s permission. Even if an EEOC complaint has numerous advantages, the employer is going to have to invest time, effort, and sometimes money to deal with it. The EEOC notifies the employer and then asks for a “statement of position,” granting an opportunity to hear the story from this perspective.

Typical EEOC Complaint Investigation Proceedings

The activities carried out are just for finding facts; information found by the EEOC is used to figure out if the complaint requires further action. From there, the process will turn into a formal investigation, which takes up more money and time. A typical EEOC investigation period lasts six months, but each case varies.

During this time, the employer may be prohibited from destroying documents of any kind without prior permission. Employers should hire a lawyer for counsel. 

Robin Shea, who is a partner in a law firm, says employers can influence an investigation, especially when not working with a lawyer. By unintentionally admitting a violation occurred or providing too many details, employers moving forward without a lawyer can turn even the most trivial complaint into a full-blown investigation.

How Does an EEOC Complaint Hurt an Employer?

Once the Equal Employment Opportunity Commission (EEOC) receives a complaint that an employer illegally discriminated against its workers, that employer may be in for a long period of legal issues.

During the ensuing months, time-consuming official requests are made to acquire more information in addition to or in the form of:

  • Intrusive investigations
  • Large legal bills
  • Negative publicity
  • Expensive damages (if the complaint is upheld)

EEOC Complaints and Costs of Litigation

Employers can avoid an EEOC investigation if they agree to attempt to mediate or settle the complaint. This will likely result in the employer having to change its procedures and policies. They may also be responsible for compensating anyone who complained. However, employers don’t have to admit any liability or guilt, and agreements remain private.

The EEOC may sue the employer if said employer will not mediate, or if the EEOC determines the case goes beyond what mediation could offer and is far more serious. The employees who filed the complaint can still sue even if the EEOC decides not to. Regardless of who sues, litigation proceedings are a considerable cost for the employer and can produce some bad publicity, as well.

Indemnifications and Penalties

This depends on the nature of the complaint, but may include paying back wages, reinstating their job, or giving them a promotion. In addition, employers will be required to pay the complainants’ court and legal fees. However, things definitely get more expensive if there’s a trial.

Damages will be awarded to any employees who filed complaints by the court. Damages are as follows:

  • 15 to 100 employees: $50,000 per person
  • 101 to 200 employees: $100,000 per person
  • 201 to 300 employees: $200,000 per person
  • More than 300 workers: $300,000 per person

For the Employee: How to File an EEOC Charge of Discrimination

When facing workplace harassment or discrimination, your first step should be complaining internally using the procedures detailed in your employee handbook or other policies outlined in the onboarding process. When your complaints aren’t met or you feel unsatisfied, you may file a discrimination complaint with the EEOC or a similar agency in your state to handle these proceedings.

The EEOC has a very well-defined process for handling complaints compared to most government agencies. It usually operates through a network of offices and places strict deadlines for complaint filing, usually ranging from around 90 days and up to almost a year. Employees are advised to pay close attention to the deadline when deciding to file against something they believe is illegal or discriminatory in the workplace.

If you think your rights have been violated, think about filing discrimination claims with the EEOC. They will reach out to both you and your employer within 10 days. Shortly after, they will begin the investigation of your claim. If they find that your employer violated anti-discrimination laws, the options are a settlement with the employer or taking the case to court.

You may also file a complaint as a U.S. citizen employed by a U.S.-based company that has operations abroad. Simply file your charge(s) with the EEOC district office in the city or state closest to your employer’s U.S.-based headquarters.

What to Do Before Filing Charges

Things you will be asked when filing:

  • Personal information, including name, telephone number, and address
  • The above information of your employer, plus the number of employees in regard to your employer/employment agency or any other alleged entity part of the discrimination
  • A short description of the alleged violation
  • Date(s) of when the discrimination/alleged violation(s) took place

If you are a federal employee, have a look at the agency’s Overview of Federal Sector EEO Complaint Process. Note that the EEOC does not process discrimination charges online. The EEOC’s online assessment tool is designed to assist in determining whether filing charges with the agency is the best course of action.

Where to File

Complaints can be filed at local equal employment opportunity agency offices. These are state and local agencies (not federal) that are official representatives of the EEOC. A state that has its own equal employment opportunity laws will be allowed 300 days after the act of discrimination occurred to file the complaint. A state that does not have its own equal employment opportunity laws only has 180 days to file.

Filing a Title VII Lawsuit

When you file your discrimination claim with the EEOC, be aware that the agency pursues only a small fraction of the charges it receives. If EEOC does not act on your complaint within 180 days, you are responsible for requesting a right-to-sue letter that authorizes you to file a lawsuit in federal court against the offending employer.

Upon receiving the right-to-sue letter, you have only a short period (90 days) to file a lawsuit, so be mindful of the deadlines for the Title VII process. The EEOC’s out-of-pocket expenses are limited by law to $5,000 per lawsuit—thousands of dollars less than it typically costs to take an employment discrimination case to court.

Time Limits for Filing Charges

Employees are advised to contact the EEOC immediately after you believe there is any discrimination on behalf of your employer. You’ll have less than a year (300 days) to file.

Tips for Dealing With the EEOC

Keep these things in mind to help get your claim through the EEOC bureaucracy in the most efficient manner:

  • Be vigilant and check in with the EEOC to learn more and discuss your case.
  • Be assertive and bring any additional EEOC issues to the attention of whoever is helping you with your case.
  • Read—and reread—any fine print to be sure to give a detailed look before signing anything.

Keep options open when filing for an EEOC complaint. Keep in mind that you still have the ability to try to solve the issue(s) at hand on your own or go through the complaint procedure suggested by the company.

Retaliation for Discrimination Complaints

Whether the file is with a state civil rights commission or the Equal Employment Opportunity Commission, many worry that their employer will seek retribution after, since they’re not above discriminating or allowing discrimination. The law prohibits this type of retaliation.

Grounds for discrimination complaints are strong when an employee was fired due to his or her race, or was denied an accommodation for his or her disability. Whether it’s believed you were denied a promotion due to your age, or were harassed because of your religion, you may win or lose your claim.

The EEOC, or other civil rights enforcement agencies, make protecting the process’s integrity a high priority. Any company can by prosecuted for seeking retribution. 

Any person that filed a discrimination complaint should be careful not to alter their behavior. A common fear is that their employer might now be “afraid of them” and can take this as an opportunity to let them go or fire them, for example. In the aftermath of a complaint, both sides will need to monitor behavior more closely and any and all actions will be more carefully documented during this time.

What to Do If Retaliated Against

Should you decide to exercise your rights under the anti-discrimination laws and your employer responds negatively toward you for doing so, you can take action in return. If the complaint was made internally within the company, first talk to the person who took your original complaint or speak directly with the company’s HR department.

When you file your charge of retaliation, you’ll need to review the incident, including when and who the person responsible was. Give as much detail as possible.

What Is Retaliation?

This simply means an employee has been discriminated against because they have filed a complaint.

Employees are protected from retaliation or from participating in an investigation when it comes to harassment or discrimination. For example, an employer may not fire an employee simply because the employee reaches out to an EEOC investigator or supports a colleague’s complaint against discrimination at the company.

EEOC Actions

Once the charge is filed, the EEOC can respond in a number of ways. It will most certainly ask your employer to respond to your allegations and might proceed to investigate your claims or send you and your employer to mediation. Mediation is an amicable step to try to resolve the dispute informally, as is trying to broker a settlement directly with your employer.

If the EEOC doesn’t resolve the problem with one of the above methods, it can choose to file a lawsuit against the employer for you.

Common Reasons for Not Filing Complaints

Here are a few frequently heard explanations:

  • “It takes too much time.” If a case is hard-fought and goes to federal trial, it can take years (even on appeal), though few cases run that course.
  • “I don’t want to be seen as a whiner.” An employee who doesn’t believe in the anti-discrimination laws will often have this perspective.
  • “Even after what I’ve been through, I don’t want to hurt my boss.” Often, employees tend to be scared to hurt their boss and never wants to file a complaint against their supervisors.
  • “I don’t want to be disloyal to my company.” Correcting unfairness ultimately will make an employer more effective by ending a bad corporate practice.
  • “I don’t have, or can’t afford, a lawyer.” Some employees simply might not have the funds to work with a lawyer.

People have been advised to come up and report illegal discrimination. However, some groups appear even more cautious than others, like immigrant groups or Asian Pacific Americans, who file discrimination complaints at a lower rate than other groups.

Schedule a Consultation With a Civil Rights Attorney

It’s difficult to take action for your civil liberties and civil rights violations on your own. When you begin to feel that either of these have been violated, then you should talk to an attorney to get a professional opinion. An experienced civil rights attorney knows the differences between these basic rights and can help you with a possible claim.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer

EEOC COMPLAINTS: 5 TIPS TO HELP YOU WIN YOUR CASE

SEPTEMBER 2019

Matthew K. Fenton

EEOC

If you feel you have experienced discrimination at the hands of an employer, filing an EEOC complaint is the first step you can take to hold them accountable. However, that is just one step.

If you are wondering how to win an EEOC claim, the following tips will help. If you have filed an EEOC complaint and want to ensure the best possible outcome, keep them in mind.

HOW TO WIN AN EEOC COMPLAINT: WHAT YOU NEED TO KNOW

1. Hire a Qualified Attorney

hire an attorney to represent your EEOC complaint

EEOC complaints do not necessarily have to result in court cases. Although this can potentially happen, typically, you may be able to resolve the matter earlier through negotiations directly between your counsel and counsel for your employer or mediation. The EEOC offers mediation services. Private mediators may also be called on to assist. This process involves discussing the complaint with a third party mediator listening to both your side and your employer’s side of the story. Employers are sometimes willing to settle to avoid drawn-out court cases.

Even if your case does not go to court, it is likely the employer against whom you have made the complaint will be represented by counsel during mediation. Therefore, you should hire an employment law attorney to maximize your odds of securing an ideal outcome. You need someone on your side who understands employment law, and who has the expertise to match that of the employer’s counsel and can take steps to move your case forward which would not be available to you simply as a function of the EEOC conducting their investigation. Whether you resolve your case through mediation or take your case to court, it simply will not be a fair fight if the employer has assistance from counsel and you do not.

2. Maintain Composure

Mediators handle sensitive issues. Often, all parties involved may feel strong emotions about the situation and how it is being addressed, which is understandable.

If you feel as though you have been discriminated against, you want to ensure the outcome of your claim is just. However, do not make the mistake of letting your emotions impact your behavior during mediation. While you may want to contact the mediators prior to your mediation to ask how you should prepare, if you do so, maintain your composure and be respectful. It is important to make the right impression.

This is another good reason to hire a qualified EEOC mediation lawyer. They can let you know how to prepare, and let you know whether contacting the mediator ahead of time is even a wise idea. Your attorney will also represent your case calmly and professionally. Your counsel has a duty to represent YOUR interests and thus fills a role very different from the EEOC investigator. Doing so is key to avoiding the consequences that can arise when you let anger or other emotions determine your behavior both before and during mediation.

3. Prepare Relevant Documentation

provide documentation to help win your eeoc complaint

Ideally, your employer will be truthful during mediation. That said, do not make the mistake of assuming they will tell the truth at all times. They may omit facts, exaggerate, or simply lie. You need to be prepared to catch them in their dishonesty when this happens.

That is one of the main reasons it is essential to prepare all relevant documentation before your mediation begins. For instance, perhaps the employer makes a claim you could refute with emails. You want them to be immediately available to you during mediation to ensure a fair process. An employee rights attorney can assist you with such tasks. They will help you identify what types of documentation would be relevant to your complaint, making certain you do not overlook anything.

It is worth noting you also need to be entirely truthful yourself during mediation. Although mediators are supposed to be neutral, they are still people. Even slightly misrepresenting the circumstances that resulted in your initial complaint will negatively impact a mediator’s opinion of your credibility. Once more, this is a good reason to coordinate with an experienced legal professional who can help you avoid any missteps that may be interpreted as deceit.

4. Consider Reaching Out to Coworkers

Reaching out to coworkers can be a tricky subject. Speak with your attorney before taking any action on your own in this capacity.

That said, there are many potential instances when coworkers may be able to support your claims. If your complaint is related to disparate treatment, meaning you were treated differently than other employees for the same behavior (due to race, gender, age, etc.), you might also be able to identify examples of other employees who were not treated as you were. Coworkers may be able to confirm this as well.

Reaching out to coworkers to gather statements supporting your complaint might be a good idea if your attorney advises you to do so. If they recommend this step, coordinate with them closely to avoid making critical mistakes. For instance, even if you do have substantial comments from others supporting your claims, you may not want to reveal the identities of the people who made those comments during mediation. The employer may feel they could reach out to those employees and convince them to alter their account once they know who they are. An EEOC mediation lawyer will ensure that, if you would benefit from gathering coworker statements, you will not make any errors during the process of collecting and sharing them.

5. Be as Professional as Possible

be professional during your EEOC meditation to help win your complaint

You will make a good impression if you show up to mediation on time, dressed as if this were a court proceeding, and demonstrate professional and respectful behavior to all parties involved. Although this may be obvious to some, it is not always the case and is worth noting. The impressions you make can influence the outcome of the mediation. Additionally, it’s a good idea to get proper rest before mediation begins. The process can be somewhat lengthy, and you do not want fatigue to set in.

THE TAKEAWAYS

The most important point to take away from all these tips is a simple one – trust your attorney. There is a good chance this is your first experience filing an EEOC complaint. Even if it is not, you probably do not have the legal expertise necessary to guarantee an ideal outcome.

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EEOC Harassment Charges Reflect #MeToo’s Relevance

Source: SHRM

By Allen Smith, J.D.

January 24, 2020
woman testifying

Despite a slight dip in the number of sexual-harassment charges filed last year, the monetary benefits of sexual-harassment cases settled by the Equal Employment Opportunity Commission (EEOC)—excluding the awards obtained through litigation—was nearly $70 million. This was much higher than in previous years, showing that the #MeToo movement continues to make changes in the workplace.

The monetary benefits from the agency’s sexual-harassment settlements have steadily risen over the past four years:

  • 2016—$40.7 million
  • 2017—$46.3 million
  • 2018—$56.6 million
  • 2019—$68.2 million

The number of sexual-harassment charges filed with the EEOC dipped slightly in fiscal year 2019 from 2018 levels but remained much higher than in the immediately preceding years:

  • 2014—6,862
  • 2015—6,822
  • 2016—6,758
  • 2017—6,696
  • 2018—7,609
  • 2019 —7,514

The number of sexual harassment charges were at a high level before that, though they dropped from the beginning of the 2010s:

  • 2010—7,944
  • 2011—7,809
  • 2012—7,571 
  • 2013—7,256

One in 10 of all charges filed with the EEOC last year alleged sexual harassment. More than half claimed retaliation, and nearly a third alleged disability, race or sex discrimination. One in five charges involved reported age discrimination, while one in 10 charges claimed national origin discrimination. The percentages add up to more than 100 percent because some charges allege multiple bases.

We’ve gathered articles on the #MeToo movement from SHRM Online and other trusted media outlets.

#MeToo Had ‘Significant Impact’ on Harassment Filings in 2018

The number of sexual harassment charges filed with the EEOC jumped 13.6 percent in 2018. “We cannot look back on last year without noting the significant impact of the #MeToo movement in the number of sexual harassment and retaliation charges filed with the agency,” said then EEOC acting chair Victoria A. Lipnic, who is still a commissioner. The movement started in 2017 after The New Yorker published an article about allegations against movie mogul Harvey Weinstein. But the total number of charges dropped below 80,000 for the first time since 2006. That trend is likely a reflection of the strong economy, said John F. Lomax Jr., an attorney with Snell & Wilmer law firm in Phoenix.

Defamation Lawsuits on the Rise

Plaintiffs who allege sexual misconduct are increasingly suing for defamation if the defendant criticizes their character. Meanwhile, more defendants are suing their accusers for defamation. Defamation cases are, nonetheless, difficult to win, particularly with public figures.

(The New York Times)

Witnesses in Weinstein Case Disparaged

The attorneys of Harvey Weinstein—who is accused of harassment, assault or rape—are reportedly going to discredit his accusers in court and through the press. The prosecution wanted a gag order to prevent Weinstein’s attorneys from doing this. A judge denied the motion but criticized the lawyers for disparaging witnesses.

(The New Yorker)

#MeToo Fears Lead to More Expensive EPLI

Companies that sell employment practices liability insurance (EPLI) are seeking higher deductibles or restricting coverage for companies in such high-risk industries as entertainment, according to a survey released at the end of last year. “Insurance companies have cut back on their willingness to take chances,” said Richard S. Betterley, an insurance consultant.

(CNBC)

State Anti-Harassment Laws Have Been Strengthened

In the wake of the #MeToo movement, many states have strengthened their anti-discrimination laws and developed more-robust workplace sexual-harassment prevention training requirements. HR professionals and organizational leaders should treat the eruption of such mandates as an opportunity—not an obligation, said Glen Kraemer, an attorney with Hirschfeld Kraemer in Santa Monica, Calif., speaking at the Society for Human Resource Management 2019 Annual Conference & Exposition.

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$500 Retainer

By Bryan A. Chapman, Esquire

Conventional wisdom says workplace discrimination cases are difficult to prove because the acts of discrimination are subtle. As a result, victims of workplace discrimination generally have to pay thousands of dollars to retain an attorney.

For people of color, workplace discrimination may not be subtle but blatant and even violent. Supervisors and co-workers assume that these victims will not complain or will not be believed.

Many people of color, with textbook cases, have a difficult time finding an attorney. Some of these cases are compelling and could lead to sizable settlements. Nonetheless, attorneys are either not interested or require thousands of dollar in retainer.

Unfortunately, when a victim files an EEOC complaint, without the advice of an experienced attorney, the chances of their complaint being dismissed by EEOC is overwhelming.

Experienced attorneys, particularly those of color, should commit to helping these victims file EEOC complaints. For an initial $500 retainer, an experienced attorney could advise victims over the telephone and via e-mail in a manner similar to the way LegalZoom.com operates.

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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.

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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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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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MORE AND MORE WORKPLACE DISCRIMINATION CASES ARE CLOSED BEFORE THEY’RE EVEN INVESTIGATED.

INJUSTICE AT WORK

Published — June 14, 2019

Rep. Alexandria Ocasio-Cortez, D-N.Y., speaks at an event in support of the Paycheck Fairness Act. The legislation, which passed the House but has yet to come up for a vote in the Senate, aims to address unequal pay for women. (AP Photo/J. Scott Applewhite)

It’s a problem that starts with Congress.

This story was published in partnership with Vox.

INTRODUCTION

It’s a classic Washington catch-22: For years, Congress has chastised the agency that investigates workplace discrimination for its unwieldy backlog of unresolved cases while giving it little to no extra money to address the problem.

In turn, officials at the U.S. Equal Employment Opportunity Commission have found a workaround: Close more cases without investigating them.

Since 2008, the EEOC has more than doubled the share of complaints involving companies or local government agencies that it places on its lowest-priority track, effectively guaranteeing no probes, mediation or other substantive efforts on behalf of those workers. About 30 percent of cases were shunted to that category last year, according to internal data obtained by the Center for Public Integrity through a public-records request.

Only 13 percent of all complaints the EEOC closed last year ended with a settlement or other relief for the workers who filed them, down from 18 percent in 2008.

Source: U.S. Equal Employment Opportunity Commission

Chicago-based accountant Richard Nelson went to the EEOC’s office in March to file a complaint that said he needed help getting his employer to make a few accommodations for disorders including attention-deficit/hyperactivity, his right under the Americans with Disabilities Act. His case was shut before the appointment ended.

“I think they’re looking for slam dunks,” Nelson said. He was told that given the office’s small staff and the level of evidence he had in emails with his employer, the EEOC couldn’t proceed. Instead of trying to settle or mediate the matter, the agency mailed him a piece of paper telling him he could file a lawsuit, which he would have to do on his own dime.

“I don’t want to sue anybody. I just want to be treated fairly,” he said.

Since 1980, as the U.S. workforce has grown by 50 percent, Congress has kept the EEOC’s funding essentially flat — budget increases eaten away by inflation.  That’s meant more cases without the resources to handle them. Last year the EEOC took in more than twice as many complaints as it did nearly four decades earlier, with about half the staff.

Gabrielle Martin, a 30-year EEOC attorney and president of the National Council of EEOC Locals No. 216, said the agency’s decision to send more cases to the “killing fields” — closing them without investigation — is a problematic solution to budget and resources woes.

“If they don’t continue to dump cases, Congress will say, ‘Well, what did you do with the money we gave you?’” Martin said. But they can’t make the case for more funding, she said, if they appear to be succeeding without it.

The EEOC defended its handling of complaints in a statement, saying it’s gathering more information early on so people with stronger evidence can get the assistance they need. Last year, the agency put more cases into its high-priority pool than it has since creating the ranking process in 1996, nearly 26,000 in all.

But the share of workers the EEOC helped get a settlement or other relief — that 13 percent — barely budged from the previous year. And the workers deemed low priority were almost all out of luck: Of about 27,000 cases, less than half a percent got relief.

Attorney Jaz Park assists low-wage workers with discrimination claims through Chicago-Kent College of Law’s employment clinic. She said she’s noticed an increase in cases closing within a few weeks without any apparent investigation from the EEOC.

In one case, a retail employee with 21 years on the job was fired shortly after being diagnosed with a heart condition. Her employer claimed she was fired for forgetting to give a customer a receipt. “If you take the time, you see it just doesn’t add up,” Park said.

Stacy Villalobos, an attorney for Legal Aid at Work, a nonprofit that provides legal services for low-income workers, said the EEOC’s categorization “oftentimes has nothing to do with the merits of the case.” Frequently, she said, information that would prove a worker’s allegation is in the hands of the employer.

“There may be merit,” she said, “but without an investigation, you may never know.”

Source: U.S. Equal Employment Opportunity Commission

‘EMOTIONALLY DRAINING’

The EEOC requires an interview with most workers before they can file a complaint. That filters out tens of thousands of potential cases from entering its system in the first place. More than 60 percent of people who inquired about filing last year ultimately didn’t — the highest dropout rate in at least 15 years — for reasons such as discrimination laws not covering their situation or the process daunting them.

Most of the complaints deemed low priority were filed by workers who continued past this weeding-out step.

To reduce its backlog, the EEOC must close more cases than it receives each year — and with fewer investigators. The agency employed about 500 last year, 140 fewer than a decade ago. It also handles a separate load of federal employees’ complaints; that too has a backlog.

This has been wearing on the agency’s workers. In 2018, almost half of EEOC staff said in a government survey that they didn’t have the resources to do their jobs, higher than average for federal agencies. The agency had the highest percentage of staff strongly disagreeing that their workload is reasonable, as well as the highest percentage strongly agreeing that the work they do is important.

“It’s really, really emotionally draining,” said former EEOC regional attorney Charles Guerrier, who was based in Birmingham, Alabama, before leaving in 2012. He said he advised staff to make peace with not being able to help every worker. The budget was so tight, he said, that sometimes his office would run out of paper because there wasn’t money to buy more.

At the agency’s San Diego office, former district director and mediator Tom McCammon said employees regularly went into work on weekends to spend unpaid hours finishing cases. Even so, he said, sometimes so much time passed before investigators got to a case that they couldn’t reach the complainant — the phone number was dead, the home address no longer valid.

“In the meantime, cases are stacking up by the hundreds with no investigation,” said McCammon, who left in 2013. “Each one of those files is a person who had a problem.”

‘FAILURE TO PAY ATTENTION’

For years, the EEOC’s standing with Congress has fallen into the same category as an increasing number of its cases: low priority.

The agency competes with 11 others in its appropriations subcommittee, including high-profile ones like NASA and the Department of Justice, for funding from a limited pool. Hearings focused on the EEOC’s performance and needs are scheduled only once every few years, and they’re often dominated by discussions of the backlog and lawsuits against employers that members of Congress object to the agency pursuing.

Congresswoman Eleanor Holmes Norton, who headed the agency from 1977 to 1981, is one of the few members of Congress who have consistently pushed to bolster protections for employment discrimination. But as the representative for Washington, D.C., she has no vote.

Her perspective: Most lawmakers have little interest in fighting discrimination.

“Failure to pay attention to the EEOC is to leave a lot of people out in the cold,” said Norton, a Democrat. “Nothing can overcome a backlog that grows from lack of funding.”

Rep. Eleanor Holmes Norton (D-D.C.) (AP Photo/Susan Walsh)

There are some signs of a shift. Last fiscal year, after eight years of flat funding that meant the agency’s budget was effectively shrinking because of inflation, the then-Republican-controlled Congress approved a $15 million increase for the EEOC. What it took was the #MeToo movement’s viral spotlight on sexual harassment. Fifteen senators and 71 representatives, all Democrats, asked the appropriations committees to give the agency more money.

But Congress approved no increase for this year, letting some of that boost evaporate as the cost of living rose. Eighty-four members of Congress, all Democrats, have requested a $20 million boost for next year. President Donald Trump is proposing a $23.7 million cut instead.

About 25,000 complaints last year involved sex discrimination, sexual harassment or both. Race and disability discrimination each accounted for virtually the same number, though neither issue has caught Congress’ attention.

The leaders of the House and Senate subcommittees that control the EEOC’s funding did not respond to interview requests. But these panels that play an outsize role in determining what the agency can do have twice as many men as women. Of their 28 members, only four identify as African American, Hispanic or Asian American. None identify as Native American.

Together they take in far more contributions from business interests than groups representing workers — at least 27 times the amount in the latest election cycle, according to data from the Center for Responsive Politics.

That creates a challenge for the EEOC. As Victoria Lipnic, then acting chair of the agency, pointed out in her latest budget justification to Congress, “our primary stakeholder” is “the American workforce.”

Martin Luther King Jr. (center left) and other civil rights activists take part in the March on Washington for Jobs and Freedom on Aug. 28, 1963.  The march pressured John F. Kennedy’s administration to propose strong civil rights legislation and built on previous organizing efforts that opposed discrimination against black workers. (AP Photo)

A HAMSTRUNG AGENCY

Some of the limits imposed on the EEOC by lawmakers have nothing to do with money.

In December, Sen. Mike Lee, R-Utah, held the Senate back from confirming three commissioners — a vote that required unanimous consent at that point — over his objection to another term for Chai Feldblum, an Obama appointee and the EEOC’s first openly lesbian commissioner.

“The federal government should never be used as a tool to stamp out religious liberty,” he said, alleging that Feldblum would use her position to do so in the name of LGBTQ rights. (Feldblum wrote last year that she believes this is not a “winner-take-all” game and that the government should look to accommodate religious beliefs while still achieving “the compelling purpose of the law.”)

Without those three commissioners, the bipartisan agency lacked a quorum, which by rule prevented it from filing higher-cost or higher-profile lawsuits against employers. In May, the Senate finally resolved that problem by confirming Chair Janet Dhillon — two years after she was nominated.

In the past two years, Lee has also introduced legislation that would strip most of the power from the National Labor Relations Board, which enforces workers’ right to organize; repeal the Davis-Bacon Act, which aims to guarantee prevailing wages for federally funded construction workers; and allow employers to give time off instead of paying overtime wages.

Reached for comment, Lee spokesman Conn Carroll said the senator was not the only elected official who had objections to Feldblum’s confirmation and that Democrats could have chosen to vote on the other nominees separately. (Commissioners are commonly approved as a group.) The spokesman said each of the employment-related bills Lee introduced, none of which passed, would “increase the freedom of workers to work.” Last election cycle, Lee received $4.5 million in contributions from business interests and $8,000 from labor groups.

Two of Lee’s bills were co-sponsored by Sen. Lamar Alexander, R-Tenn., chairman of the Senate committee that reviews labor legislation and a member of the subcommittee that handles EEOC appropriations.

Alexander has been more attentive to the EEOC, and its backlog, than most lawmakers. When the agency proposed collecting wage data by sex, race and national origin from large employers as part of a cross-agency effort to curb pay discrimination in 2016, for example, he wrote to the White House’s Office of Management and Budget to request that it squelch the idea. Among his concerns was that collecting pay data from employers — which business associations including the U.S. Chamber of Commerce opposed — would further delay the resolution of EEOC cases.

U.S. Sen. Lamar Alexander (R-Tenn.) (AP Photo/Mark Humphrey)

“The proposal is likely to worsen that backlog as the EEOC will now be sifting through the billions of pieces of new data instead of focusing on its mission of investigating complaints of discrimination in the workplace,” he wrote.

However, Ron Edwards, a former EEOC official who led the initiative, said the agency actually planned to use the extra data — which would be collected and analyzed electronically — to resolve complaints more efficiently.

Alexander also introduced the EEOC Reform Act, which would have barred the agency from collecting pay data until it reduced its backlog by about 90 percent. Though the bill was unsuccessful, he had more luck with the OMB, which in 2017 stayed the EEOC’s collection of the data. That decision was reversed this March following a lawsuit by the National Women’s Law Center and the Labor Council for Latin American Advancement. The Department of Justice has filed an appeal.

Last election cycle, Alexander received more than $7 million in contributions from business interests — 130 times what he received from labor groups. Alexander, who has said he won’t seek reelection next year, did not respond to multiple requests for comment.

Edwards, who worked at the EEOC for nearly 40 years, knew the pay information would be a powerful tool to correct discrimination — and that employers didn’t want to turn it over.

“The real crux of employment is pay,” said Edwards, who retired in 2017. “If you collect the pay data, you get a better sense of how people are being treated.”

Chad Griffin, president of the Human Rights Campaign, spoke to advocates for LGBTQ rights before a House vote on the Equality Act of 2019. The bill, which passed the House in May but has yet to come up for a vote in the Senate, would prohibit discrimination based on sexual orientation or gender identity. (AP Photo/J. Scott Applewhite)

In recent months, Democrats have introduced bills, in some cases co-sponsored by a handful of Republicans, to strengthen discrimination law enforcement, including measures to address the gender pay gap, improve protections for LGBTQ workers and prohibit non-disclosure agreements in workplace harassment cases.

None has passed.

Labor economist William Spriggs isn’t surprised by that or the funding constraints that affect workers’ chances of help at the EEOC. Congress’ treatment of employment discrimination and workers’ rights, he said, is par for the course in the U.S.

“There is a tendency in society to think of labor law as littering or something,” he said. “They don’t think of it as an actual violation.”

 

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

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