What is “materially adverse” when establishing a retaliation claim?

By Bryan A. Chapman, Esquire

Retaliation is the most common workplace discrimination complaint filed with the Equal Employment Opportunity Commission (EEOC). Generally, retaliation occurs when a worker complains about workplace discrimination and is then targeted by his or her employer for harsher treatment.

Three elements of a prima facie retaliation case.

The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006).  To establish a claim for retaliation, a plaintiff must show:

1)         they engaged in protected activity;

2)         the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,

3)         there is a causal connection between the protected activity and the asserted adverse action.

What does “materially adverse” mean?

Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Burlington, 548 U.S. 68.

Suspending supervisory responsibilities or significantly reducing responsibilities.

A suspension, demotion, or termination can be materially adverse.  However, taking away an employee’s supervisor duties or significantly reducing their responsibilities can also be materially adverse for the purpose of establishing a retaliation claim. Czekalski v. Peters, 475 F.3d 360, 364 (D.C.Cir.2007) (“[W]ithdrawing an employee’s supervisory duties … constitutes an adverse employment action.” (quoting Stewart, 352 F.3d at 426) (internal quotation marks omitted)); id. at 365 (observing that “reassignment… with significantly diminished responsibilities” would constitute an adverse employment action); Kessler v. Westchester County Dep’t of Soc. Serv., 461 F.3d 199 (2d Cir. 2006); Davis v. City of Sioux City, 115 F.3d 1365 (8th .Cir. 1997)

Reprimand or negative job performance evaluation.

A reprimand or negative job performance evaluation can be materially adverse. Nye v. Roberts, No. 03-1683, (4th Cir. 2005) (unpublished) (In this case, however, the evidence is such that a reasonable jury could find that, in the context of the Board’s system of progressive discipline, the reprimand and performance evaluation resulted in a material change in Nye’s employment status.); Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“…he received much lower performance evaluations than he had received before filing his employment discrimination charge…  There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports, including two written reprimands.”)

Pursuing false criminal charges.

Pursuing false criminal charges against an employee can be materially adverse. Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006) (“An employer can effectively retaliate against an employee…Berry v. Stevinson Chevrolet, 74 F. 3d 980, 984, 986 (CA10 1996) (finding actionable retaliation where employer filed false criminal charges against former employee who complained about discrimination).”; Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996) (“Other courts concluding that Title VII extends to former employees have held that the filing of charges can constitute the requisite adverse action.”); Beckham v. Grand Affair of NC, Inc., 671 F.Supp. 415 (W.D.N.C. 1987)

Creating or perpetuating a hostile work environment.

Retaliatory harassment can constitute an adverse employment action. Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001); Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005) (“The weight of authority supports the view that, under Title VII, the creation and perpetuation of a hostile work environment can comprise a retaliatory adverse employment action under 42 U.S.C. § 2000e-3(a).  See, e.g., Von Gunten v. Maryland…”).

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EEOC Launches Online Services for Inquiries, Appointments and Discrimination Charges

U.S. Equal Employment Opportunity Commission


PRESS RELEASE
11-1-17

New EEOC Public Portal Allows Online Interactions with the Agency

WASHINGTON – Today the U.S. Equal Employment Opportunity Commission (EEOC) launched an EEOC Public Portal to provide online access to individuals inquiring about discrimination.

“This secure online system makes the EEOC and an individual’s charge information available wherever and whenever it is most convenient for that individual,” said EEOC Acting Chair Victoria A. Lipnic. “It’s a giant leap forward for the EEOC in providing online services.”

The EEOC Public Portal allows individuals to submit online initial inquiries and requests for intake interviews with the agency. Initial inquiries and intake interviews are typically the first steps for individuals seeking to file a charge of discrimination with EEOC. In fiscal year 2017, the EEOC responded to over 550,000 calls to the toll-free number and more than 140,600 inquiries in field offices, reflecting the significant public demand for EEOC’s services. Handling this volume of contacts through an online system is more efficient for the public and the agency as it reduces the time and expense of paper submissions.

The new system enables individuals to digitally sign and file a charge prepared by the EEOC for them. Once an individual files a charge, he or she can use the EEOC Public Portal to provide and update contact information, agree to mediate the charge, upload documents to his or her charge file, receive documents and messages related to the charge from the agency and check on the status of his or her charge. These features are available for newly filed charges and charges that were filed on or after Jan. 1, 2016 that are in investigation or mediation.

Five EEOC offices (Charlotte, Chicago, New Orleans, Phoenix and Seattle) piloted the new system for six months. Feedback from the public and the EEOC pilot offices led to improvements in the system for this nationwide launch.

The new system does not permit individuals to file charges of discrimination online that have not been prepared by the EEOC or to file complaints of discrimination against federal agencies.

In the next few weeks, the EEOC will also provide online access to charging parties for whom the agency has an email address, who have pending charges that are currently in investigation or mediation and were filed as of Jan. 1, 2016.

Individuals who do not have online access can call 1-800-669-4000 to get basic information about how to submit an inquiry to their local EEOC office.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employ­ment discrimination. More information is available at www.eeoc.gov.  Stay connected with the latest EEOC news by subscribing to our email updates.

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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

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Bryan A. Chapman, Esquire

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I will fight for you.

By Bryan A. Chapman, Esquire

I am a civil rights lawyer whose focus is employment discrimination. I have been fighting for workers against powerful employers since 1993. I practice before the EEOC and in the federal courts. I am a graduate of Dartmouth College and the University of Wisconsin-Madison law school.

If you are experiencing workplace discrimination, fighting back generally begins with filing a discrimination complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC complaint process does not require the presence of a lawyer. Today, much of the EEOC complaint process is conducted on-line or by telephone.

However, if you do not have an experienced lawyer advising you, the EEOC complaint process can be brutal. You will be going up against your employer’s highly experienced lawyers. Workplace anti-discrimination laws give employers a huge advantage over workers. The outcome is predictable, employers win 98% of the time at the EEOC.

For Help Call (202) 508-1499

Filing a discrimination complaint with the EEOC is just one of several options. In fact, filing a discrimination complaint with the EEOC may not be your best option. There are federal laws, such as Title VI, Title IX, 1983, and 1981, that do not require that you file a complaint with EEOC and that allow unlimited damages. There are also state and local agencies that offer advantages. I can provide you with effective advice no matter where you live.

Ideally, you should consult with me prior to filing a complaint with EEOC or its partner agencies. I will help you settle your case for as much as possible, quickly and at minimum expense. For instance, EEOC has a mediation program that facilitates settlements.

I will do the following: 1) analyse the facts of your case, 2) apply the relevant laws, 3) discuss your options with you, and 4) guide you through the complaint process. Again, I can provide you with effective advice no matter where you live.

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Bryan A. Chapman, Esquire

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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

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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

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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.

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 Mediations: “When Money Counts, EEOC Mediations Are Not Neutral”

By Fox Rothschild LLP 

May 14, 2014

POSTED IN U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)

Our friend, Merrily S. Archer, Esq., has written an important piece on her website concerning a survey which she helped to conduct among lawyers and others who have appeared before the EEOC as part of its conciliation process (“ADR”).   Her takeaway:  with ADR being the EEOC’s “biggest cash cow,” to settle cases for as much as possible EEOC mediators capitalize on employer insecurity, fear of the costs of defense, and threat of EEOC enforcement actions.   While she agrees that the costs of litigation are enormous (who doesn’t!), she debunks the threat of EEOC enforcement as being illusory.

Complete with helpful graphs, her report states that over 80% of those who responded “reported that an EEOC mediator referenced the cost of defense when encouraging employers to settle.  The cost of defense undoubtedly now drives employers’ settlement deliberations more than any other factor.  Discrimination is, after all, difficult to prove but easy to allege, and the allegation itself exposes employers to an average cost of $70K in non-recoverable defense fees.”

She notes that “According to the EEOC’s 2013 Performance and Accountability Report (PAR), the EEOC collected another historic amount of money from employers ($372.1 million) last year,” and that “its ADR program is the EEOC’s biggest cash cow, accounting for nearly half of its collections.”

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As to employer insecurities, she says that “EEOC Mediators often ‘capitalize on employer insecurities about juries, such as ‘your summary judgment motion will fail’ … “juries dislike employers” … and “a jury won’t like/believe your witnesses or documents.”    In fact, “most EEOC mediators are former investigators, not attorneys, and have extremely limited experience divining the preferences of future jurors. Besides, juries don’t hate employers; rather, they hate liars and lawyers, often failing to distinguish between the two.”

Finally, when it comes to EEOC enforcement activity, the EEOC’s own enforcement statistics show that, for example, in FY2013 “the EEOC issued Reasonable Cause determinations in only 3.6% of charges, down from 3.8% in FY2012.   Likewise, the number of EEOC-initiated civil lawsuits has fallen dramatically in recent years, as the EEOC focuses more on larger, systemic investigations and prosecutions. Perhaps for this reason, the fact that over 60% of employers reported threats of an EEOC systemic investigation is particularly alarming.”

Her conclusion:  “When money counts as the measure of its effectiveness, EEOC mediations are not neutral; on the contrary, EEOC mediators are allied with Charging Parties and their attorneys, whose sole objective is to maximize settlement payouts.”

Recommended reading for EEOC practitioners and employers!

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

Of Course EEOC Mediations Are (or Should Be) Different!

Posted on 

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In response Fox Rothschild’s republication of our EEOC Mediation Survey, a handful of practitioners weighed in: (a) one claimed that EEOC mediations are just like private ones;  (b) a contract EEOC mediator insisted he would never make the misrepresentations specifically identified in our survey; and (c) another practitioner reported he has had only positive experiences with his local EEOC mediators, here.

The first point—i.e., EEOC mediation are just like private mediations—merits a more substantive response, below.  As for the other two, the sheer volume of responses (780) and strength of the findings (e.g., over 70% of reporting threats of “reasonable cause” determinations and prosecutions) account for one-off, individual experiences.  That is, we designed a quick survey to elicit the feedback of numerous practitioners, not just the vocal ones, and to draw statistically supportable conclusions, not just report our opinions and personal experiences.  We’re delighted that some practitioners have reported good experiences, but the whole point of a survey is to develop an understanding broader than anecdotes.

Further, our survey did not intend to measure “satisfaction,” on the rationale that participants could simultaneously report satisfaction and evidence of mediator deception.  For that reason, we asked only whether EEOC mediators made a specific representation, and then juxtaposed those findings against published EEOC information.

Three Ways EEOC Mediations Are (or Should Be) Different from Other EEO Mediations

Unlike Private Mediators (or Magistrate Judges), EEOC Mediators Represent a Federal Agency that Wields Broad Enforcement Authority and Prosecutorial Discretion

Our survey revealed that EEOC mediators regularly threaten employers with “reasonable cause” determinations (73.7%), prosecutions (70%), and even systemic investigations (61%).  We then tested these representations against the EEOC’s own Priority Charge Handling Procedures (PCHP), and clarified that if any of these enforcement outcomes were LIKELY, the EEOC would not have routed the charge to the ADR program in the first place.  We also compared these representations to the EEOC’s own enforcement data, noting a considerable gap between their reported frequency and REALITY.

Unlike a private mediator (or even a judge), the EEOC was entrusted with numerous enforcement powers—e.g., to investigate, to issue subpoenas, to render determinations, and to prosecute employers.  Most of these activities occur below the surface, out of public view and under the heavy armor of “government deliberative process” privilege and statutory confidentiality, which the EEOC cites to resist judicial scrutiny of its administrative processes (e.g., mediation, investigation, conciliation).  These processes, however, possess tremendous power, by themselves, to inflict terrible financial pain and inconvenience on employers, even before actual PROOF of an EEO violation in court. Thus, our finding that EEOC mediators regularly brandish these powers (disingenuously, in reality) to encourage employer settlement payouts raises legitimate questions about (a) the objectivity of the process; and (b) the responsible use of governmental power.   The EEOC I served under Clinton would not have allowed Field personnel to get this close to the ethics fence.

Unlike Private Mediators (or even Magistrate Judges), EEOC Mediators Represent a Federal Agency that Measures Its “Efficacy” by Its Employer Collections

Different kinds of mediators come with different motivations.  Private mediators whom I have worked with over a long litigation career get paid by the hour and so, they seem motivated to help the parties get a deal done no matter how long it takes.  Magistrate judge mediators make their same government salary while they’re juggling five other matters in addition to your mediation, and so, they seem motivated to make your case (and you) go away as quickly as possible.  Our study ultimately asked this question: if (a) the EEOC equates efficacy with employer settlement payouts; and (b) the ADR program historically generates more settlement payouts than any other EEOC program, what would EEOC mediators say to make employers pay?

Our study suggests that EEOC mediators may be neutral toward the parties and the dispute, but certainly not toward OUTCOME, unlike any other mediation context.  On the contrary, if success is ultimately measured in dollars, EEOC mediators are inherently allied with Charging Party’s counsel, whose primary motivation is to maximize monetary payouts.   Perhaps for that reason, employers and practitioners who show up to EEOC mediations empty-handed or with small purses often encounter the barb that they are not negotiating in “good faith.”  In fact, EEOC mediations differ substantially than other kinds of mediation because at the outset, the mediator shares the underlying motivations of one of the parties.

Unlike Private Mediators (or even Magistrate Judges), MOST EEOC Mediators are Not Lawyers

Our study showed that EEOC mediators often forecast gloomy litigation outcomes and juror preferences.  Unlike private mediators or magistrate judges, most EEOC mediators are not lawyers; rather, most of them are longtime EEOC investigators who got promoted into their positions when the ADR program launched in the late 1990’s.  Thus, unlike the sage insights of battle-hardened judges and former litigators, most EEOC mediators mimic the “pro-wrestler speak” of trial lawyers.

Fancying itself an advocacy agency, the EEOC frequently forgets the important concomitant duties of balance and fairness that accompany prosecutorial discretion and governmental deliberative process privilege.  To suggest, therefore, that EEOC mediations are just like any other mediation (a) misses the point of our survey; and (b) ignores the public duties (e.g., fairness, balance) that temper governmental power.

Ultimately, given the EEOC’s focus on employer settlement payouts as the measure of its efficacy, we question whether the EEOC’s programs, processes, burdens and initiatives have WORKED to actually deliver equal employment opportunity based on far more meaningful measurements of progress.   We’re trying to further the march toward EEO by asking, What can we do differently (better) to improve access to top jobs, equalize the burdens of unemployment, become an international leader in the benefits of multiculturalism, level the playing field in the federal sector, etc.?  At this historic milestone (i.e., Title VII’s 50th on 7/2/14), it is not enough to say “We have much work to do,” a clear EEOC talking point.  Rather, responsible policy-making requires us to evaluate whether past interventions have proven effective and to develop positive approaches based on programs that have actually worked.

Please stay tuned for “Seven Sparks to Jumpstart the March Toward Equal Employment Opportunity”, which we plan to publish in the coming weeks.

Merrily S. Archer, Esq., M.S.W., May 26, 2014

Five Employer Takeaways from the EEOC Mediation Survey

What You Don’t Know Can Cost You

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In late 2013, EEO Legal Solutions released the then-available results of its EEOC Mediation Survey, which Bloomberg BNA republished in January, 2014.  Other media outlets also picked up our preliminary findings, and even tried to elicit a response from the EEOC.   After four months, the EEOC finally responded to other media inquiries.   It denied any knowledge of our findings, despite published documentary proof that EEOC Commissioner Chai Feldblum requested (and we provided) survey data charts in January, 2014.   Since then, the response rate increased to 779, bringing the overall picture about common EEOC mediator tactics into sharper focus.

We had hoped, however, for 1,000 responses from an evenly distributed cross-section of the United States to look for regional variations, if any, from national averages.  Nevertheless, because of widely varying response rates by state, we simply cannot differentiate between EEOC District Offices with any statistical firepower.   With recent revelations about the poor quality of EEOC statistical analyses undergirding systemic investigations and prosecutions, prudence and fairness dictate more conservative treatment of data.

In our earlier publication about the EEOC mediation process, we detailed the impetus for this survey, central research questions, survey methodology, question design, and response-gathering process, here.     In this Final Report, we get right to the point and post the pictures: what can employers learn from the mediation survey?

EEOC Mediators Exploit Employers’ Cost-of-Defense Conundrum

As reflected in Figure 1, over 80% reported that an EEOC mediator referenced the cost of defense when encouraging employers to settle.  The cost of defense undoubtedly now drives employers’ settlement deliberations more than any other factor.  Discrimination is, after all, difficult to prove but easy to allege, and the allegation itself exposes employers to an average cost of $70K in non-recoverable defense fees.  Without EPL Insurance, most employers can no longer afford to fight to prove themselves RIGHT, an unwelcome byproduct of an EEO enforcement scheme that benefits lawyers at the expense of employers. Employers are stuck, and our survey shows that EEOC mediators know it.

According to the EEOC’s 2013 Performance and Accountability Report (PAR), the EEOC collected another historic amount of money from employers ($372.1 million) last year, a feat it touts under the heading “Enforcing the Law More Effectively.”  The FY2013 PAR also makes clear that its ADR program is the EEOC’s biggest cash cow, accounting for nearly half of its collections.  Nowhere, however, does the EEOC mention the cost-of-defense conversation its personnel initiate with employers as soon as the allegation is made, regardless of merit.  Accordingly, the EEOC’s use of employer settlement money as ostensible evidence of “enforcing the law more effectively” seems like a poor proxy for progress toward equal opportunity.

Figure 1

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 EEOC Mediators Forecast Gloomy Litigation Outcomes

EEOC Mediators often mimic the standard settlement tripe of NTLA/NELA attorneys to capitalize on employer insecurities about juries, such as “your summary judgment motion will fail” (Figure 2), “juries dislike employers” (Figure 3), and “a jury won’t like/believe your witnesses or documents” (Figure 4).   In fact, most EEOC mediators are former investigators, not attorneys, and have extremely limited experience divining the preferences of future jurors.  Besides, juries don’t hate employers; rather, they hate liars and lawyers, often failing to distinguish between the two.

Figure 2

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Figure 3

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Figure 4

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EEOC Mediators Overstate the Risk of Reasonable Cause Determinations, Systemic Investigations, and Prosecutions

Given the suffocating cost of defense, the possibility of future EEOC enforcement activity would weigh heavily on any employer’s settlement deliberations.   Survey results show that EEOC mediators regularly threaten EEOC cause determinations (Figure 5), EEOC prosecutions (Figure 6), and even systemic investigations (Figure 7), which go on years and cost employers millions, more here.   When faced with these enforcement possibilities, most reasonable employers would pay more to settle, again, to avoid anticipated defense costs.

These mediator representations are, however, complete nonsense.  First, as EEOC mediators know, if any of those enforcement actions were likely under the EEOC’s 1995 Priority Charge Handling Procedures (PCHP), the EEOC would not have routed the charge to the ADR Unit in the first place; only charges designated as “B” (lower priority) are eligible for ADR.  In fact, at an EEOC hearing on March 20, 2013, EEOC Commissioner Victoria Lipnic suggested that the EEOC tell employers about the charge’s PCHP designation to take the “gamesmanship” out of EEOC enforcement.  EEOC field personnel immediately opposed her idea, citing the timeworn government deliberative process privilege:  if employers knew, they argued, that the EEOC classified the charge as a “B”, and that, by extension, the EEOC was unlikely to devote its limited resources to an actual “investigation,” employers would be less likely to settle. 

Second, the EEOC’s own enforcement statistics completely belie EEOC mediator threats of enforcement activity.  In FY2013, the EEOC issued Reasonable Cause determinations in only 3.6% of charges, down from 3.8% in FY2012.  Likewise, the number of EEOC-initiated civil lawsuits has fallen dramatically in recent years, as the EEOC focuses more on larger, systemic investigations and prosecutions.  Perhaps for this reason, the fact that over 60% of employers reported threats of an EEOC systemic investigation is particularly alarming.

Figure 5

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Figure 6

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Figure 7

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HR is Under-utilized

Approximately one-third of survey participants had not participated in any EEOC mediation over the past two years, and nearly 50% were HR practitioners (Figure 8); by contrast, only 5% of attorneys in law firms and 7% of in-house reported not having any mediation over the past two years.  Our survey suggests, therefore, that most employers still treat EEOC mediations like serious legal problems that require lawyer “superpowers” and the corresponding expense.

Not so fast: as “B” charges, EEOC mediations are comparatively low risk.  Under PCHP, “B” charges are “handled,” not “investigated.”  In fact, the presence of counsel for the Charging Party is the single biggest determinant of whether an EEOC charge will advance beyond the EEOC administrative process or will languish, and then fizzle, just like the overwhelming majority of “B” charges heaped on the EEOC’s “Inventory” each year.   And to the EEOC, reducing its Inventory (by “handling” but not investigating “B” charges) shows that it is “serving the public more efficiently.”  Ironically, NTLA/NELA attorneys and I find common ground re the utter uselessness of this administrative process.

In some cases, it makes sense to pit lawyer against lawyer in an EEOC mediation, particularly if the EEOC administrative process seems like just a speed-bump en route to real litigation.  But for most EEOC mediations, employers can realize incredible cost savings by sending well-trained HR professionals instead.   Under this “coaching” mediation model, attorneys remain instantly available to advise and intervene, if necessary, using the wide variety of media that modern technology makes possible (e.g., cell phone, text messaging, and email).   Ultimately, this “coaching-from-the-sidelines” approach spares employers of the considerable unnecessary expense of non-productive attorney appearance time, particularly those long intervals when the mediator confers with the other party.

Further, today’s HR professionals often possess the interpersonal, emotional intelligence (EQ) skills that (a) attorneys often lack; and (b) work extremely well in informal mediation settings.  EQ skills, which are not taught or honed in law schools or law firms, quell the rancor that fuels workplace disputes and prevents cost-effective resolutions. For an angry, allegedly aggrieved employee, the presence of defense counsel often signifies warfare, sets a counterproductive tone, and interferes with resolution.  Smart attorneys—i.e., the skilled, not just the billed—know when to get out of the way.

Over this past year, in-house counsel and EPL adjusters have expressed a rational concern.  Attorneys are necessary to advise employers during EEOC mediations, they argue, just in case the EEOC mediator starts talking smack about reasonable cause determinations, systemic investigations, prosecutions, adverse summary judgment rulings and opinionated juries.  By calling attention to and then dispelling common mediator threats, however, this survey thereby seeks to diffuse them and help all practitioners make more informed mediation decisions.   In an era of high EPL deductibles and frequent EEO disputes, HR can fulfill an important, and necessary, cost-saving role.  To view our EEOC mediation training webinar, EEOC Mediations: Getting What You Want without a Big Legal Bill, click here.

Figure 8

HR and Mediations

When Money Matters, EEOC Mediations are NOT Neutral

Employer settlement payouts make a poor proxy for progress toward EEO, even though the EEOC counts their money as evidence of “enforcing the law more effectively.”  Our study aimed to answer this central question: If the EEOC equates efficacy with employer settlement payouts, what impact, if any, would this metric-that-matters have on the behavior of personnel operating its biggest settlement machine, the ADR program?

The results speak volumes.  Behind closed doors, EEOC mediators exaggerate the risk of poor litigation outcomes and EEOC enforcement activity to ratchet up employer cost-of-defense settlement offers, regardless of charge merit.  Immediately upon the mere accusation of discrimination, employers walk into a cost-of-defense conversation where the questions of wrongdoing and EEO compliance are irrelevant. In the EEOC’s “fabulously successful” ADR program, money (and lots of it: $372.1m) changes hands between employers, EPL carriers, defense attorneys, and plaintiff’s employment lawyers, with some leftovers for allegedly aggrieved employees. But does this wealth redistribution really advance the march toward equal employment opportunity (i.e., “enforcing the law more effectively”)?

Unfortunately, no.  When we measure what MATTERS, it becomes clear that under this adversarial litigation-based model of EEO enforcement, progress toward EEO has stalled for most of Title VII’s intended beneficiaries.   In Measuring What Matters at Title VII’s 50th Anniversary, we analyzed the EEOC’s own EEO-1 data to evaluate the progress of women and minorities toward attaining top jobs, across industries; we looked at unemployment rates among gender and racial groups; we researched federal sector EEO employment trends; we pulled up Gallup polls and EEOC intake data to assess whether workers perceive workplace opportunity as more equitably distributed; and we compared the United States to other developed nations (e.g., Sweden, Israel, South Africa) re the representation of women in business and governmental leadership.  These more meaningful measurements of our progress show that our methods for securing EEO—i.e., the STICKS of an adversarial EEOC and CRA 1991’s privatized litigation-based model—no longer WORK, by themselves or at an acceptable pace, to modify employers’ behavior and by extension, reform the workplace.

When money counts as the measure of its effectiveness, EEOC mediations are not neutral; on the contrary, EEOC mediators are allied with Charging Parties and their attorneys, whose sole objective is to maximize settlement payouts.  The EEOC claims, nevertheless, that 98% of employers are satisfied with their ADR experience; until this survey, however, most employers likely did not suspect that EEOC mediators were misleading them.

The EEOC will continue sell its “fabulously successful” ADR program to employers.  At the EEOC’s March, 2013 hearing, EEOC careerist Mary Jo O’Neill, Regional Attorney in the Phoenix District Office, called the ADR program “such a wonderful opportunity to settle” and urged employers to “take more advantage of [it] than they do.”  At last year’s EEOC Excel Conference, EEOC Chair Jacqueline Berrien heavily peddled the ADR program, and not coincidentally, at this year’s Excel Conference in San Diego (for which the EEOC charges employers over $1,300), the EEOC has again devoted an entire “track” to the merits of mediation.  As long as the EEOC counts employer money as EEO progress, employers and Title VII’s intended beneficiaries will remain STUCK in an ineffective wealth redistribution loop where nothing much changes except money changing hands.

We can do better.  Stay tuned for Part II of our two-part series on Title VII’s 50th anniversary, “Seven Sparks to Jumpstart Progress toward Equal Employment Opportunity.”  Part I, “Measuring What Matters on Title VII’s 50th Anniversary,” is available here.

Merrily S. Archer, Esq., M.S.W., May 13, 2014

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Bryan A. Chapman, Esquire

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What The EEOC’s New Data May Tell Us About The State Of The #MeToo Movement

Feb 2, 2020

Steven Pearlman Contributor Careers

I defend employment litigation around the country.

2018 #MeToo March
GETTY IMAGES

The #MeToo movement gained momentum in early October 2017, when the hashtag went viral on social media following Alyssa Milano’s now-famous tweet, which led to responses from celebrities and ultimately resulted in an avalanche of allegations of sexual harassment and assault. The #MeToo Movement has, of course, impacted workplace dynamics, and companies have responded in various ways, such as by conducting investigations, modifying sexual harassment policies and providing more frequent and robust training of employees of all levels.  

Given that sexual harassment claims can present serious reputational and financial risks to companies, questions are often raised as to the current state of the #MeToo movement—particularly with respect to its influence on the workplace. What sources can we look to in order to answer the question? There are a variety, but one notable source is year-over-year data on the rate of filings of sexual harassment charges with the U.S. Equal Employment Opportunity Commission, the size of recoveries in matters before the EEOC and determinations the EEOC has made. 

So let’s consider the data the EEOC just released on these issues on January 24, 2019. A fair reading of that data suggests the #MeToo movement continues to press forward. Most notably, the data shows that the number of sexual harassment filings in fiscal year 2019 remains quite substantial but has dropped from the number filed in fiscal year 2018, and the amount of recovery for sexual harassment charges has increased from fiscal year 2018. 

Let’s take a closer look at the data and then consider what it could mean in practical terms for companies.Today In: Leadership

Volume Of EEOC Sexual Harassment Charges

The EEOC recently released data that includes breakdowns for the 72,675 charges filed in fiscal year 2019 (which runs through September 30, 2019). Sexual harassment charges represented 10.3% of that overall number. 

The number of sexual harassment charges filed in fiscal year 2019 was 7,514, whereas the number of such charges filed in fiscal year 2018 was 7,609. While not enormous, this drop is curious given that the #MeToo movement remained active in fiscal year 2019, with a number of high-profile cases. Notably, the number of claims in fiscal year 2019 is lower than those filed in fiscal years 2010 to 2012, but still higher from those in fiscal years 2014 to 2017.

Size Of Recoveries

While the number of sexual harassment charges dropped in fiscal year 2019, the size of the recoveries jumped up from $56.6 million in fiscal year 2018 to $68.2 million in fiscal year 2019. The size of the increase in recoveries becomes vivid when comparing fiscal year 2019 recoveries to those in fiscal year 2010 ($41.2 million) through fiscal year 2017 ($46.3 million).

How Complainants Are Faring Before The EEOC

Another interesting set of data points shows how complainants alleging sexual harassment fared before the EEOC in fiscal year 2019. As a preliminary matter, when reviewing the data, one should keep in mind that the EEOC does not issue determinations on all sexual harassment charges, and the data referenced below may reflect the fact that fewer sexual harassment were filed in fiscal year 2019.

Getting to the point, the EEOC issued fewer “no reasonable cause” determinations in fiscal year 2019 (4,297) than it did in fiscal year 2018 (4,501). Yet, the EEOC found that “reasonable cause” existed in fewer matters in fiscal year 2019 (356) than it did in fiscal year 2018 (430).

Notably, the data on reasonable cause findings during the life of the #MeToo movement shows there were fewer findings in favor of complainants during that time-frame than in fiscal year 2010 through fiscal year 2013 and an arguably similar number of findings in fiscal year 2014 through fiscal year 2016.

Charges Filed By Men

Additional data the EEOC just revealed shows that 16.8% of the EEOC charges filed in fiscal year 2019 were initiated by men, which is an increase in the 15.9% figure for filings by men in fiscal year 2018.

What Inferences Can We Draw?

The newly revealed EEOC data raises some important questions, including the following:

– Are plaintiff-side attorneys being more selective in choosing which cases to pursue?

– Have employee training programs—which many employers revisited when the #MeToo movement blossomed—become more effective? 

– Is a larger swath of corporate America appreciating the risks that flow from sexual harassment claims and adjusting their conduct accordingly, while those who have not changed course have suffered more severe financial consequences? 

– Are fewer claims being brought in the aggregate while more claims are being filed against higher-level managers or executives (which could engender greater recoveries)?

There are no clear answers to those questions. But it’s noteworthy that the volume of claims is still relatively high and the size of recoveries has jumped.

Also, can we draw any particular inferences from the fact that the EEOC has issued fewer reasonable cause findings while at the same time issuing fewer no reasonable cause findings? That’s a difficult question to answer as a general matter because each determination turns on the specific facts of the case. And a drop in reasonable cause findings does not fit neatly with the data showing that the size of recoveries has increased over the EEOC’s last fiscal year. 

Last, the fact that more men have been filing sexual harassment charges suggests that the #MeToo movement has effectively raised awareness across the board. 

All in all, the EEOC’s fiscal year 2019 data shows that despite a drop in charge filings over the EEOC’s last fiscal year, sexual harassment claims are still being filed at a meaningful rate and garnering significant recoveries. This may serve as at least one indicator that the #MeToo movement as it relates to workplace dynamics still has steam.

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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Know Your Rights At Work: Sexual Harassment

Source: Equal Rights Advocates

What is it?

Please note: The purpose of this Know Your Rights Guide is to help you understand your rights and options if you are experiencing sexual harassment at work. This guide is not legal advice. Laws and legal rules frequently change and can be interpreted in different ways, so Equal Rights Advocates cannot guarantee that all of the information in this Guide is accurate as it applies to your situation.

Workplace sexual harassment takes many different forms. It can come from a coworker, a supervisor, or a customer or client, and ranges from unwanted touching, inappropriate comments or jokes, or someone promising you a promotion in exchange for sexual favors.

Sexual harassment does not have to be “sexual.” It can also look like teasing, intimidating or offensive comments based on stereotypes (e.g., about how certain people “are” or should act), or bullying someone or a group of people based on their sex, gender identity (man, woman, trans, intersex, nonbinary) or sexual orientation (queer, straight, bisexual, lesbian, gay, asexual, pansexual, two-spirit etc.) Sometimes sexual harassment is about sex and something else, like race or ethnicity. For example, a woman of color may experience harassment in the workplace differently from a white female co-worker She may be the target of abusive or hostile behavior because of the combination of her sex and her race or ethnicity.

Examples of behavior that could be harassment include but are not limited to:

  • making unwanted requests for sexual favors or dates
  • making inappropriate comments about someone’s body or appearance
  • saying bad things about or making fun of someone or all people of a certain gender or sexual orientation (i.e. “women are…” or “gay people all…”)
  • using gender-based or sexual orientation-based slurs (swear words)
  • making vulgar, offensive, or explicit jokes about sex or sexual acts
    • Note: It still counts as harassment even if the conduct is not aimed at you specifically. For example, if you are a trans person who hears a group of co-workers making offensive jokes or insults about trans people (in general), that kind of behavior could still be considered “harassment,” even though they aren’t speaking to or about you specifically.
  • sending or sharing emails, texts, or messages of a sexual nature
  • gossiping about someone’s personal relationships or sex life
  • unwanted or inappropriate touching of any body part, clothing, face, or hair, including hugging, kissing, or assault
  • staring, leering, or making gestures of a sexual nature
  • blocking someone’s movement
  • displaying, sending, or sharing vulgar pictures or pornography

For something to be considered sexual harassment, it matters what the person who’s being harassed thinks; It does not matter if the person who’s doing the harassment thinks it’s OK, harmless, not sexual, or welcomed (i.e., they think you like it or don’t have a problem with it.) It’s still harassment if the behavior is something you do not want or find offensive.

It also still counts as harassment even if, in the moment, you don’t immediately say “stop” or something else to let the person know that what they’re saying/doing is inappropriate. For example, you might laugh along at a joke that you find offensive, or accept a hug because you’re caught unaware in the moment, or because you’re worried the person will react badly if you don’t go along with their behavior. If the harasser is a supervisor or someone else who has more power than you, you might be afraid speaking up or saying “no” will impact your job. All of these are normal responses to harassment. Responding this way does not make the harassment less serious, or make you more responsible.

What are the laws?

Federal Law

Legally, workplace sexual harassment is considered a form of sex discrimination, so sexual harassment is illegal across the country. Generally, these federal (national) laws apply only to employers with 15 or more employees, but your state might have better laws that cover smaller employers.

  1. Sexual harassment is illegal.  Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it illegal for employers to allow anyone to be sexually harassed at work by anyone else, regardless of sex, gender, or sexual orientation.
    • Sexual harassment can happen to anyone. It is about power, not sexual desire. So for example, men who identify as straight can sexually harass other men – for example, by teasing or bullying those men for being “too feminine” or “acting gay.” (For examples of sexual harassment, see the What Is It? section above.)
    • Title VII applies to employers. It is designed to make employers accountable for providing a work environment that is free from harassment and other kinds of discrimination. It does not make it illegal for someone to harass someone else. Instead, it makes it illegal for employers to allow harassment to occur or to fail to stop it once they know it’s happening. So this civil rights law does not give you a right to sue an individual person – unless that individual person is your employer.
  2. Retaliation is also illegal.  It’s illegal for someone at work to retaliate against (punish) you for reporting or speaking out against sexual harassment, or for participating in an investigation or legal action related to sexual harassment. Examples of retaliation in the workplace include being fired or demoted, receiving a pay cut or a reduction in your hours or benefits, being assigned a different shift, location, position, receiving new or different duties, or being asked to take time off without pay. Retaliation can also be subtle, build up, or get worse over time. Examples include being iced out by coworkers, no longer being invited to meetings, or being left off of communications you were formerly on.
  3. If you report sexual harassment, your employer cannot ignore you or retaliate against you. If a boss or someone in HR knows about the harassment, or should know that you are being harassed, legally, they must take prompt action to try to stop the behavior, investigate the harassment, and make sure it doesn’t happen again. The action also has to be “appropriate” and effective, meaning it has to actually make the harassment stop, without harming you or allowing you to become a target of retaliation.
    • If you complained or told your boss, HR, or another manager about sexual harassment, and they failed to do anything to make the situation better (or made it worse), you could consider taking legal action.

What are my rights?

You have the right to:

1.  Work in a safe, discrimination-free environment.  Your employer is required by law to provide a safe working environment that is not “hostile” to you based on your sex or gender identity.

2.  Be told about your company’s sexual harassment policies — including how to report — in a way that you understand.

  • In California, your employer must have a written policy on harassment, and must make sure every employee knows the policy exists and gets a copy. The policy should be written in a language that employees understand.

3.  Talk about or speak out against sexual harassment, whether it’s happening to you or to someone else. You can talk about sexual harassment or discrimination that’s happening at work to whoever you want, including your coworkers or your supervisor. You also have the right to tell your employer (in a reasonable way) that you believe a company policy or practice perpetuates harassment, or a manager is engaging in harassment or discrimination. It is illegal for your employer to retaliate against (punish) you for talking with coworkers about harassment or discrimination.

4.  Report the harassment to HR or your boss. Report to HR, your boss, or someone else at your company who has power. We highly recommend reporting in writing (email or letter) and making copies so you have proof later if you need it. It is important to report harassment internally first if you might want to take legal action later. (See the What Can I Do? section below)

5.  Picket or protest against sexual harassment or other kinds of discrimination. In fact, when you get together with one or more of your co-workers to raise concerns about your pay or working conditions, you’re engaging in what’s “concerted activity,” which is legally protected by the National Labor Relations Act.

6.  Have your complaint taken seriously and investigated. Legally, your employer must take complaints about sexual harassment seriously and investigate them. As soon as your employer is aware of the sexual harassment, the law requires them to (1) take quick action to stop it, and (2) adequately protect you or the person who’s being harassed.

7.  Ask your employer what will happen and who will know if you file a complaint.  You may want to keep your complaint confidential, but be aware: Investigations usually involve interviewing the harasser, the person complaining about harassment, and other employees as potential witnesses.

8.  File charges with a government agency, such as the Equal Employment Opportunity Commission (EEOC), or your state’s fair employment practices agency — for example, the California Department of Fair Employment and Housing (DFEH). You also have the right to tell your employer that you plan to file a charge, and they cannot retaliate against you for doing so.

  • Note: There are strict deadlines for filing charges with government agencies, called “statutes of limitations.” The deadline to file with the EEOC is either 180 or 300 days from the “last act” of harassment, depending on which state you’re in. In states that have their own anti-discrimination laws and agencies, including California, the deadline to file a discrimination complaint may be different. For more, see the What Can I Do? section below.)

9.  Sue (file a lawsuit against) your employer. This is only an option if you already filed a charge with the EEOC or your state’s FEPA (see #8 above), and you get you a “Right-to-Sue” Notice. Be aware that there are strict deadlines about how many days you have after you receive that Notice to file a lawsuit in court.

10.  Testify as a witness, or participate in an investigation by the EEOC or other government agency. Your employer can’t keep you from providing evidence, testifying at a hearing, or communicating with a government agency that is looking into sexual harassment or other discrimination at your workplace. Even if the investigation eventually finds that there was no harassment, your participation is still a protected right, meaning your employer can’t retaliate against you (punish you) for cooperating.

If you are fired or retaliated against (punished) for doing any of the above, it is illegal, and you could take legal action. Retaliation includes being fired or demoted, cutting your pay, changing your shifts, hours, benefits, or duties, being asked to take time off, or any other action that has a negative effect on you.

What can I do?

If you or someone you know is experiencing sexual harassment (including harassment based on gender identity or sexual orientation), here are some actions you can take. Remember: It is normal to be afraid or worried about reporting sexual harassment or taking other action to make the harassment stop. Do what is right for you, and don’t do anything that you think will put you in danger. These are just examples of options you might want to consider.

1.  If you’re comfortable doing so, ask the person who’s doing the harassing to stop. You can do this verbally (in person or on the phone) or in writing (i.e., by letter, text message, or email). If you do so in writing, keep copies in case you need proof later. If you do so verbally, you may want to ask a trusted co-worker to go with you to serve as a witness.  If you don’t feel comfortable talking or writing to the harasser directly, you should still keep detailed notes about your interactions and experiences. Keep your notes in a safe place outside of work, like at home or in a journal, your personal phone, or email account.

2.  Look at your company’s policies and complaint process. Most employers give you an employee manual or handbook when you’re first hired. Review this to find out what policies might be in place to protect you. If you never got a copy or lost it, ask for a new one. Look for sections or documents that mention harassment or discrimination, which often include information about how to report the misconduct. If there is no information about how to report, see if there is a phone number for HR (Human Resources) or employee relations.

3.  Write everything down.

  • Write down what happened when the harassment occurred, including dates and times, where it occurred, what exactly was said or done, who said/did it, what you said or did, and any witnesses who were there. Include as much detail as possible, and keep notes about every time it happens or happened. If it happens again, write down the details again right away, while the memory is fresh.
  • Keep notes of any conversations or meetings you have about the harassment, including with HR, your supervisor, or the person doing the harassment. Record the time, date, and place of the meeting, and who was there. If you’re comfortable doing so, ask any witnesses to write down what they heard or saw.
  • Keep all notes in a safe, private place at home, in a journal or notebook, on a personal email account, or in another safe place not at work.
    • Tip: Others may later read these written records as part of an investigation. So it’s important to stick to the facts and be as objective as possible.
  • Save any emails, texts, letters, or messages about the harassment, or between you and the harasser. Gather them in one place, at home, on a personal email account, or in another safe place not at work.
  • Keep copies of complaints or reports you file with your company, and all responses.
  • Keep copies of any other documents related to the harassment, and any responses.
  • If you think your employer has retaliated against you, keep detailed notes of every action that happened, when, where, and any witnesses.

4.  Report the harassment to HR or your boss.  We understand it’s not always possible to feel comfortable or safe at work after telling your boss or a supervisor about the harassment you’re experiencing. But we recommend reporting harassment to someone at work who is in a position of authority, because it is harder to make your employer take action unless you report the harassment internally first.

  • We recommend reporting in writing, whether it’s by email or letter. Be sure to keep copies of your report(s) in a safe place outside of work, at home or on a personal email account. For examples of what to write in your report, see our Sample Internal Complaint Example in the Tools & Resources section at the bottom of this page.
  • If you report orally (in person or on the phone), we recommend taking notes about the conversation and then sending a follow-up email or letter confirming what happened during the conversation. For example:
    • Dear [name of Supervisor or Human Resources Staff],
      I’m writing to confirm that we met today, [date], to discuss the fact that I am being sexually harassed by [coworker]. As we discussed, the harassing behavior has included [description of the harassment], and happened [number of times]/has been happening since [date]. You told me [description of employer’s response]. Thank you for taking the time to meet with me about this issue. Sincerely, [Your name]”

5.  You could report the harassment anonymously. If reporting the harassment is not an option that feels safe or comfortable to you, you could make an anonymous report to HR or a manager. Some employers operate helplines or other ways for you to report problems anonymously, such as an employee assistance program or an Ombudsperson. There are also nonprofit organizations that allow you to anonymously report workplace sexual harassment, such as Better Brave or Callisto Expansion.

  • Be aware: If you only report harassment anonymously, and don’t say when, where, to whom things happened (or how you have personal knowledge of it), your employer may not be able to investigate or correct the behavior.

6.  Collective Action. You could come together with one or more workers to demand a meeting with your employer, submit a petition, or take some other action.

7.  Go to your union. If you’re a member of a union, you could talk to your union representative or shop steward and consider filing a grievance. Ask about the collective bargaining agreement and see if it includes provisions about sexual harassment or other discrimination. If you go to your union with a complaint about sexual, racial, or other kind of harassment, the union has a duty to help you. This is true even if the person you’re complaining about is also a member of the same union.

8.  File a complaint with a government agency. If you have experienced harassment at work and your employer is aware but has not stopped it, ignored your report, or retaliated against (punished) you in any way for complaining or supporting someone else’s complaint of harassment, you can file a legal complaint with a government agency: either with your state’s anti-discrimination or civil rights agency (sometimes referred to as FEPA, or Fair Employment Practices Agency), or with the federal (national) Equal Employment Opportunity Commission (EEOC), which has offices nationally.  (File a complaint in California.)

  • Important Note: If the government agency decides to investigate your claim, they will likely interview you as well as the person doing the harassing, and may tell them about your claims. They could also interview your supervisor(s), coworkers, people in HR, and others who may have witnessed the harassment or know about your complaint.
  • Government agencies often take months to assign each case to an investigator, so the whole process could take many months or even years to complete. If you don’t want to wait for the agency to do or complete an investigation, you may be able to request a “Right-To-Sue” notice so you can go directly to court. The rules on getting a “Right-to-Sue” notice are different depending on whether you filed with the EEOC or a state agency. You can ask the agency or the investigator assigned to your case to find out more.
  • Keep in mind: There are strict deadlines about how long you have to file a lawsuit in court once you get a Right-to-Sue notice. It’s a good idea to talk to a lawyer before you file anything in court.

9.  Talk to a lawyer. If you need help understanding your rights and weighing your options, Equal Rights Advocates may be able to help. ERA offers free, confidential legal information, advice, and other assistance through our Advice & Counseling service.

10.  You could sue (file a lawsuit against) your employer in court.

  • Important Note: Before suing, you should first file a charge of discrimination with a state or federal government agency, and get a “Right to Sue” from that agency. Even if you plan to represent yourself (without an attorney), we strongly recommend speaking with an attorney before you take the step of filing a lawsuit in court.

11.  Pay attention to deadlines.

  •  Depending on the state you work in, you either have 180 days or 300 days from the last time you were sexually harassed to file a discrimination complaint (or “charge”) with the EEOC. (Sexual harassment is considered discrimination by the EEOC, so sexual harassment victims should file discrimination complaints.) Check the EEOC’s website to find your state’s deadline.
    • Caution: Making an internal complaint or report to your employer, or filing a grievance with your union, does not extend the deadline to file a complaint with the EEOC or your state’s anti-discrimination agency.
    • You have 6 months if you want to file an unfair labor practice claim with the National Labor Relations Board because you were retaliated against (punished) for taking action against sexual harassment or discrimination at work with one or more of your co-workers. (This means you engaged in “concerted” activity, which is your legally protected right). Visit the NLRB website and click on your state for more information.
  •  California
    • You have 1 year from the last time you were sexually harassed to file a discrimination complaint with the CA Department of Fair Employment and Housing.

What could happen?

If you take legal action, there are different kinds of “remedies” you can ask for. Some have to do with money, and others are more about changing your employer’s behavior. Not everyone can get all of these things. Each case is different, but these are some common examples of things you can demand, and may be able to get if you’re successful (i.e. if you win your lawsuit or reach a settlement).

  1. Compensation for lost wages and other economic losses if the sexual harassment resulted in a loss of work or income (i.e., you had to take a leave of absence, lost hours, were fired and had no income for a while, or lost your job and have not found one that pays you as much.) You could also seek compensation for expenses related to any medical or health treatment you needed or will need in the future because of sexual harassment or retaliation.
  2. Compensation for emotional distress and physical pain or suffering, which could include anguish, stress, anxiety, pain and suffering, loss of sleep, damage to your reputation, and loss of enjoyment of life resulting from harassment.
  3. Reinstatement:  If you were fired or forced out because of the sexual harassment or retaliation, you could potentially get your job back.
  4. Punitive damages: If you sue in court and show that the employer acted with malice or showed “reckless indifference” to your rights, you may be able to get the court or a jury to order that the employer pay punitive damages, which are meant to punish especially bad employers and send a warning message to other employers.
  5. Make your employer change their policies or practices. You may be able to get the court to order, or get your employer to agree to change the way it does things in the future to help make the workplace safe and fair for everyone, and to help ensure that others do not suffer the same thing you went through.

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