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.

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Big Mistakes Workers Make When They File Discrimination Claims

By Bryan A. Chapman, Esquire

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

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

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

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

Most workers who file discrimination claims are simply unprepared.

I. Unrealistic Expectations

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

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

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

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

II. Failure To Consult An Experienced Attorney

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

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

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

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

III. Expecting the Employer to Adopt Their Point Of View

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

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

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

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Bryan A. Chapman, Esquire

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Overview Of Federal Sector EEO Complaint Process

Source: Equal Employment Opportunity Commission

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

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

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

EEO Counselor

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

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

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

Filing A Formal Complaint

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

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

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

Agency Issues A Decision (Final Action)

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

Requesting A Hearing

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

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

Filing An Appeal Of The Agency’s Final Order

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

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

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

Request For Reconsideration Of The Appeal Decision

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

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

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

Filing A Lawsuit

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

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

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Bryan A. Chapman, Esquire

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bchapman@baclaw.com

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This is not your father’s EEOC.

By Bryan A. Chapman, Esquire

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

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

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

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

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

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

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

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

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Employment and Discrimination: Exploring the Climate of Workplace Discrimination from 1997 to 2018

HUMAN RESOURCES
ARTICLE
08/01/2019
Source: Paychex

Across the U.S., workplace discrimination on the basis of race, gender, religion, pregnancy, and disability is illegal. Of course, while all employers must follow federal laws regarding employment discrimination, specific state laws pertaining to hiring and employment prejudices can vary greatly from region to region.

As an example, 48 states have drafted equal pay laws. While Alabama and Mississippi have passed no such legislation, Georgia’s law only applies to businesses with 10 or more employees. Despite both state and federal laws addressing discrimination based on race, studies show hiring bias against black and Hispanic employees hasn’t improved at all in over two decades.

For a better understanding of employment discrimination in America today, we analyzed 21 years of data from the Equal Employment Opportunity Commission (EEOC) Enforcement & Litigation Statistics.Read on as we break down the more than 1.8 million complaints filed with the EEOC since 1997.

Concerns in the workplace

From 1997 to 2018 (the last year data was available), there were 1,889,631 discrimination complaints filed with the EEOC. In 2017, a majority of these complaints were categorized as retaliation (49%), race (34%), disability (32%), or sex (over 30%).

Sixty-four percent were officially dismissed as having found no issue after investigation, and around 18% were closed for administrative reasons. According to the EEOC, cases closed for administrative reasons may include the charging party deciding not to pursue their case, lack of communication, or a withdrawal request from the charging party.

Discrimination rates, by state

A total of 916,623 discrimination cases were filed with the EEOC between 2009 and 2018. Of these cases, the highest rates of discrimination complaints occurred in Southern states. Complaints of discrimination and bias in the workplace were highest in Alabama (62.2 complaints per 100,000 residents), Mississippi (60.8), Arkansas (51.7), and Georgia (50.3).

While race claims are often the most commonly filed with the EEOC, they have the lowest percentage of success (15%) in terms of legal action or reaching a settlement.

Discrimination complaints between 2009 and 2018 were the lowest in Maine (2.5), Montana (2.6), New Hampshire (4.0), Idaho (4.3), and Nebraska (4.3).

Descriptions according to the EEOC

As we take a more detailed look at employment discrimination in America, it’s important to understand the different types of discrimination people encounter. For age discrimination, color and race discrimination, equal pay discrimination, national origin discrimination, religious discrimination, and sex discrimination, we’ve included descriptions according to the U.S. Equal Employment Opportunity Commission.

Now, we’ll explore each type of discrimination more closely, including which states have the highest percentage of complaints.

Statewide discrimination complaints

Alabama had the highest rate of employment discrimination complaints per capita, but it also had the most complaints regarding color and race (8.3), sex (9.7), and equal pay discrimination (1.1).

Even though pay discrimination based on sex has been illegal since the ’60s, critics argue it can be difficult to prove under normal circumstances. In Alabama, no state law protects women from pay inequity.

New Mexico nearly tied with Alabama for the most complaints centered on equal pay discrimination and led the country (along with Alabama) from 2009 to 2018 for age and national origin discrimination complaints. In 2016, there were 20,857 claims of age discrimination filed across the country, making it the ninth-consecutive year where employees alleged more than 20,000 cases of ageism in the U.S. workforce.

Making progress

While some states saw a decline in the number of discrimination complaints filed with the EEOC between 2009 and 2018, others saw dramatic increases. Despite a decrease in the number of color and race discrimination complaints in states like Minnesota (nearly 69%) and Oregon (57%), increases were much more substantial in states including Utah (almost 104%) and Connecticut (56%).

Similarly, the number of sex discrimination complaints between 2009 and 2018 more than doubled in Nebraska, followed by a nearly 109% increase in Massachusetts and 80% in Utah. Utah also ranked in the top five for the most complaints regarding age discrimination, color and race discrimination, national origin discrimination, and sex discrimination. Roughly 4 in 10 working women say they’ve experienced some form of discrimination at work due to their gender, including those who earn less than men for the same job, those who are treated as incompetent, and those who experience repeated slights in the workplace.

Changes in workplace discrimination

You might think with federal laws like the Equal Pay Act of 1963 or the Age Discrimination in Employment Act (ADEA), the rules surrounding workplace discrimination would be cut and dry. However, employees should be cognizant of how discrimination still exists in their industry. Shady hiring practices, unfair promotional structures, unequal pay, and retaliatory behavior are all signs of discrimination.

Between 1997 and 2018, there were over 710,500 discrimination complaints filed to the EEOC for one category: color and race. While the total number of cases dipped slightly from 2002 to 2005, there was an intense spike in color and race discrimination charges in 2006 that continued to climb into 2010. The total number of color and race discrimination charges remains higher than any other category of complaints.

Sex (570,360), age (422,866), and national origin discrimination complaints (198,689) also accounted for the highest number of discriminatory claims filed with the EEOC between 1997 and 2018.

Frequent cases of discrimination

Analysts suggest there are many reasons why the total number of discrimination claims continues to rise. From heightened awareness of what’s qualified as illegal behavior to increased coverage in the news of what discrimination looks like, more people may feel compelled to bring their concerns to the EEOC.

People reporting certain forms of workplace discrimination may experience similar issues. Among religious discrimination claims, reasonable accommodation was cited seven times more frequently than in any other claim. In 2019, a jury awarded one employee over $21 million in damages after determining that her employer, a Miami hotel, violated her religious rights by demanding she work on Sundays and firing her for noncompliance. After filing her complaint with the EEOC, the organization issued the employee a “right to sue” notice, thus supporting her legal claim against the company.

Discrimination based on an employee’s age can take many forms. Discrimination centered on age had the highest percentage of discriminatory firings according to the EEOC. Studies suggest 61% of employees over the age of 45 have either personally experienced or seen discrimination at work, and that can include the way they’re treated by existing employers, when looking for new work, and when terminated from existing employment.

Final resolutions

Discrimination in the workplace may not be uncommon, but it can be very difficult to prove. According to the AARP, nearly 2 in 3 employees between the ages of 55 and 65 cited age as a barrier to employment. Despite the high volume of complaints surrounding ageism, just 16% of cases focused on age discrimination merited a resolution for the charging party. At most, 22% of cases focused on equal pay led to a resolution, and fewer than 16% of cases that focused on color and race experienced similar results.

Between 1997 and 2018, the average case of discrimination related to equal pay compensated the charging party nearly $31,000. Combined, equal pay cases resulted in $157 million in monetary benefits. Both religion and color and race discrimination cases averaged the lowest overall monetary benefits — $13,000 and $14,900, respectively.

Protecting your employees

The U.S. Department of Labor enforces roughly 180 laws designed to safeguard workers from discrimination and bias, and the U.S. Equal Employment Opportunity Commission facilitates additional layers of protection for the same purpose. Still, despite federal and state laws geared toward illuminating discrimination in the workplace, more than 1.8 million cases have been filed with the EEOC in the last two decades. While a majority of charges brought to the EEOC were either unfounded or closed for administrative reasons, there’s been no major decrease in the total number of discrimination complaints reported to the EEOC since 1997.

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Methodology

The data presented in this project are from the Equal Employment Opportunity Commission (EEOC) Enforcement & Litigation Statistics. The most recent year of the data is 2018. It was accessed in July of 2019 for use in this project. The categories explored were age, color, race, equal pay, national origin, religion, and sex discrimination. Age discrimination reports fall under the Age Discrimination in Employment Act (ADEA) category in the original data. Equal pay discrimination falls under the Equal Pay Act (EPA) category in the original data.

The total number of cases was calculated using the “Charge Statistics (Charges filed with EEOC) FY 1997 Through FY 2018”data tables. The figure calculated only reflects the total number of individual complaints filed. It is possible for one individual to report multiple types of discrimination, and those multiple reports are not included in the total figure: 1,889,631.

For the graphic titled “Outcomes of Investigations,”the categories were altered for readability. These were the changes:

  • “Investigation found no issue” represents the EEOC’s “No Reasonable Cause”
  • “Closed for administrative reasons” represents the EEOC’s “Administrative Closures”
  • “Settlement” represents the EEOC’s “Settlements”
  • “Complaint withdrawn by charging party” represents the EEOC’s “Withdrawals w/Benefits”
  • “Considered for litigation” represents the EEOC’s “Unsuccessful Conciliations”
  • “Informal resolution reached between parties” represents the EEOC’s “Successful Conciliations”

Per-capita calculations per state were calculated using American census population data for 2018. The calculation is as follows: (Total number of discrimination reports per state/State population)*100,000.

Percentage change calculations for the graphic titled “Changes in Discrimination Complaints Over Time”are as follows: (Total number of complaints in 2018 – Total number of complaints in 2009)/Total number of complaints in 2009.

Average payout per charge calculations were done as follows: Total monetary benefits/Total number of merit resolutions per type of discrimination.

For graphics exploring the data by state, the available years were 2009 to 2018. For all other graphics, the data encompass 1997 to 2018.

The data were not statistically tested. Future research could also explore the current climate of disability, genetics, pregnancy, or retaliation discrimination complaints in the workplace — topics that were not explored in this analysis.

Sources

Fair use statement

For millions of people across the country, workplace discrimination is a real concern. The more people understand the laws, the more likely they are to report bias and discrimination. Help share the results of this study with your readers for any noncommercial use with the inclusion of a link back to this page.

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EEOC IS A STRAW MAN

By Bryan A. Chapman, Esquire

Millions of American workers rely on the Equal Employment Opportunity Commission (EEOC) to protect them against workplace discrimination.  Unfortunately, that reliance is misguided.

Less than 5 percent of workers who filed job discrimination complaints against their employer with EEOC receive a favorable decision from the agency.  With the number of discrimination complaints growing each year, EEOC does not have the funding to conduct investigations.  In order to reduce its backlog, EEOC dismisses a growing number of complaints without even investigating them.  When EEOC dismisses a complaint, it sends the employee a “right-to-sue” letter which instructs them to file a discrimination lawsuit in federal court within 90 days.  For most people, a “right-to-sue” letter marks the end of the road.

The March on Washington for Jobs and Freedom occurred in August 1963, it was the highlight of the 1960’s Civil Rights Movement.  Dr. Martin Luther King gave his “I Have A Dream” speech on the steps of the Lincoln Memorial to a crowd of over 250,000 people.

That year, President John F. Kennedy meet with civil rights leaders and introduced a bill in Congress to address discrimination against black people.  In 1964, President Lyndon B. Johnson signed the Civil Rights Act of 1964 which made job discrimination illegal based on race, sex, national origin, and religion.   The Civil Rights Act marked the official end of the Jim Crow era that terrorized black people for 100 years.  The Act created the Equal Employment Opportunity Commission (EEOC) whose mandate is to protect workers from job discrimination.

Almost sixty years later, the EEOC is out of favor in Congress; ending job discrimination is not a priority.  For all practical purposes, due to a lack of funding from Congress, the EEOC can no longer fulfill its stated purpose of protecting workers from job discrimination.

Today, black people are not the only victims of job discrimination.  Because of the #metoo era, women have filed a flood of sexual harassment complaints with EEOC.  There are also more age and disability discrimination complaints being filed with the agency.

Since EEOC lacks the funding to enforcing workplace discrimination laws, employers know that there is little or no penalty for allowing workplace discrimination to continue.  It is no wonder that the vast majority of workers who are experiencing discrimination in the workplace never file a complaint with EEOC.  Most of these workers fear retaliation by their employers.

Nonetheless, filing a complaint with EEOC offers important benefits: 1) filing a complaint with EEOC is a prerequisite to filing a discrimination lawsuit in federal court; and, 2) EEOC offers mediation which can lead to a settlement.  While most workers do not have the means or the desire to file a discrimination lawsuit in federal court, many workers expect to resolve their complaint through mediation.

In conclusion, EEOC’s mediation service can be very beneficial to workers.  However, no worker should expect EEOC to advocate for them.  To the contrary, many feel that EEOC is working to the benefit of employers.  Anyone who is contemplating filing a complaint with EEOC should seek advice from an experienced civil rights attorney.

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Do I Have A Case?

By Bryan A. Chapman, Esquire

When a potential client contacts me, they usually want to know whether or not they have a case.  Unfortunately, there is no simple answer to this question because the laws governing job discrimination are complicated and the facts of any case are subject to interpretation and change.  Employers routinely deny allegations of job discrimination.

The typical employee works at the pleasure of their employer.  The doctrine is called “employment-at-will” and it means that an employer can terminate an employee at any time and for any reason, good or bad, provided it is not for a discriminatory purpose.

It means that being terminated, in and of itself, is not proof of discrimination, even if the employee has a good job performance record.  This doctrine also applies to promotions, demotions, and transfers.  Employment-at-will is too steep a hurdle for most discrimination claims.

If an employee claims that his or her termination was discriminatory, then evidence is needed that specifically establishes a discriminatory motive on the part of the employer.  Direct evidence of an employer’s discriminatory motive is rarely available.  Most employers are not going to: 1) admit that employees are being terminated for discriminatory reasons or 2) engage in blatantly discriminatory behavior.  However, from time to time, there are exceptions.

A discriminatory motive typically has to be proven by means of circumstantial evidence.  For instance, an employee and/or group of employees are treated more harshly than similarly situated employees of a different race, sex, national origin, etc.  These cases are strongest when a group of employees are alleging the same type of discrimination.

Furthermore, the employee must demonstrate that his or her job performance was not an issue.  Employers typically claim that an employee’s termination was due to a non-discriminatory reason, such as, deficient job performance.

A hostile work environment claim is different from the typical job discrimination claim.  These claims involve overt discriminatory behavior, such as, name-calling, slurs, jokes, innuendos, and inappropriate touching and advances that make the workplace abusive and intimidating.  If an employer has notice and fails to take prompt and effective corrective action, the employer can be held liable.  A hostile work environment claim can be based on race, sex, national origin, etc.  These cases are strongest when a group of employees are alleging the same hostile work environment.

If a female employee complaints that a male manager or co-worker is engaging in inappropriate sexual behavior, and the employer fails to take corrective action that stops the harassment, the employer could be found liable for compensatory damages, such as, emotional pain and suffering.  In their defense, employers will claim that: 1) they did not have notice of the sexual harassment; 2) the sexual behavior was not severe or was consensual; or, 3) corrective action was taken.

Retaliation involves employers who punish employees for complaining about discriminatory behavior.  To establish a claim of retaliation, the employee has to demonstrate that: 1) they engaged in protected activity, such as, complaining about discrimination; 2) the punishment was severe enough to deter a typical employee from continuing to complain about discrimination; and, 3) the punishment began shortly after the complaint.  Today, the most popular type of job discrimination claim is retaliation.

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Is The EEOC Protecting Workers Or Discriminatory Employers?

Source: Forbes Magazine
 

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The Equal Employment Opportunity Commission (EEOC) is tasked by the U.S. Congress with enforcing federal laws that prohibit workplace discrimination but a recent analysis of EEOC complaints from 1997 to 2018 demonstrates how little the EEOC actually does with respect to enforcing those laws.

The analysis was conducted by Paychex, Inc., a Rochester, NY – based company that provides payroll, human resource, and benefit outsourcing services to small and medium sized businesses.

The Paychex data indicates the EEOC failed to failed to find discrimination in 87 percent of the almost 1.9 million cases filed by discrimination victims over the 21-year-period.

The EEOC found no reasonable cause for discrimination in 64.3 percent of cases, closed 18.3 percent for administrative reasons and 4.8 percent were withdrawn by the charging party.  The EEOC found reasonable cause for discrimination in only 4.6 percent of complaints and considered filing a lawsuit in only 3.2 percent of complaints.

Today In: Leadership

Annual statistics from the EEOC show that its percentage of reasonable cause determinations has declined considerably in recent years, from a high of 9.9 percent in 2001.  The EEOC found reasonable cause in only 3.5 percent of complaints in 2018; 2.9 percent in 2017, and; 3.2 percent in 2016.

Types of workplace discrimination complaints filed from 1997-2018

COURTESY OF PAYCHEX, INC.

Congress, in adopting federal anti-discrimination laws, required discrimination victims to file a complaint first with the EEOC before they could proceed to federal court.  Congress’ goal was to encourage employers’ voluntary compliance with discrimination laws, rather than forcing compliance on employers through litigation. However,  Paychex’ analysis, and others like it, raise troubling questions.

Does the formula devised by Congress fifty years ago, when it passed Title VII of the Civil Rights Act and the Age Discrimination in Employment Act,  actually work ?

How can the EEOC be seen to encourage employers to comply with federal discrimination laws when it imposes so few sanctions upon employers that violate the law?

But the problem goes deeper. Once the EEOC has determined there is no reasonable cause for discrimination, the EEOC sends complainants a “right to sue” letter.  By that time, many workers are  disillusioned by the EEOC’s dismissive handling of their complaint and considerable time has lapsed since the discriminatory event.  The EEOC’s administrative process  may actually discourage workers from taking discriminatory employers to court.

The 21-year-retrospective of EEOC complaint handling ultimately raises a question about whether the “system” is working to protect discrimination victims or is it, instead, helping to shield discriminatory employers from the consequences of violating federal civil rights laws?

Requests for comment on this article from the EEOC and EEOC Commissioner Janet Dhillon went unanswered.

It has been noted the EEOC has had the same budget, when adjusted for inflation,  since 1980. The EEOC received an additional $16 million from Congress last year due to an increase in sexual harassment complaints stemming from the “#Me Too” movement.  However, it is clear that Congress has failed to provide sufficient funding and oversight of the EEOC to promote fair and effective enforcement of America’s civil rights laws.

The Paychex analysis sheds light on other aspects of the EEOC complaint process. For example, Paychex found regional variations in complaint filings, with the South leading the way. Complaints of discrimination and bias in the workplace were highest in Alabama (62.2 complaints per 100,000 residents), Mississippi (60.8), Arkansas (51.7), and Georgia (50.3).  The states with the fewest discrimination complaints were Maine (2.5), Montana (2.6), New Hampshire (4) and Nebraska (4.3).

Average payouts over time.

COURTESY OF PAYCHEX, INC.

Among individual states, sex discrimination was the top charge for every state except Connecticut, Maine, Montana, Nebraska, New Hampshire, Ohio, Rhode Island and South Dakota, where age discrimination was the top charge.

Some types of discrimination complaints were more successful than others. According to Paychex, the percentage of successful resolutions per type of discrimination complaints over the 21-year-period was:

  • Equal pay, 22.1 percent;
  • Sex, 19.9 percent;
  • Religion, 18.2 percent;
  • National origin, 17.2 percent;
  • Age, 16.2 percent, and;
  • Color/race, 15.6 percent.

The highest per complaint payout in these categories went to the 5,138 equal pay cases, which yielded an average of $30,600. The lowest per complaint payout went to the 118,870 color/race- based complaints, which yielded an average of $14,900.

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

INJUSTICE AT WORK

Published — June 14, 2019

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

It’s a problem that starts with Congress.

This story was published in partnership with Vox.

INTRODUCTION

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

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

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

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

Source: U.S. Equal Employment Opportunity Commission

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

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

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

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

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

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

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

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

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

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

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

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

Source: U.S. Equal Employment Opportunity Commission

‘EMOTIONALLY DRAINING’

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

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

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

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

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

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

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

‘FAILURE TO PAY ATTENTION’

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

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

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

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

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

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

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

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

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

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

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

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

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

A HAMSTRUNG AGENCY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

None has passed.

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

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

 

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

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Filing a Discrimination Claim – Virginia

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

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

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

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

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

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

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

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

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

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

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

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

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

3. What are my time deadlines?

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

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

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

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

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

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

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

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

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

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

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

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



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com