Common Mistakes When Filing With The EEOC

Waiting To Find Legal Representation

Many individuals file with the EEOC (Equal Opportunity Employment Commission) without legal representation.  This can lead to preventable issues later down the road if certain facts or boxes are not included in the Charge of Discrimination.  If potential claims are not brought at specific stages of the EEOC process, the ability to bring a lawsuit for those claims are lost.

Personal Story Of A Discrimination Charge That Went Wrong

In recent months, our law firm was approached by a woman that completed the EEOC process herself.  She found out too late that the correct box for her protected class was not checked.  This meant she lost her ability to proceed to federal court on a strong claim.  She was “devastated” and realized that she “should have talked to a lawyer first.”    

All claims brought under the following federal statutes must be brought to the EEOC prior to filing a lawsuit

Title VII of the Civil Rights Act 

If you believe you are being discriminated against due to: Race, Color, Sex, Religion, National Origin or Ethnicity.

The Genetic Information Nondiscrimination Act 

If you believe you are being discriminated against due to: your genetic information.  Genetic information includes –  your family medical history; information about your or a family member’s genetic tests, such as tests to detect whether an individual has an increased risk of developing certain cancers or other diseases; and the fact that an individual or the individual’s family member has sought or received genetic counseling or has participated in clinical research that includes genetic testing.

The Age Discrimination in Employment Act

If you believe you are being discriminated against due to: being over the age of 40.

The Americans with Disabilities Act

If you believe you are being discriminated against due to: any mental or physical impairments that may or may not affect your job.

Not Acting Before You Get The Right to Sue

Many individuals wait to seek legal counsel once they receive their Right to Sue.  A 90-day deadline seems like a long time, but in the legal profession, it is not. 

  • It is difficult for an attorney to familiarize themselves enough with a case in 90 days to confidentially file a Complaint in federal court. 
  • An attorney will have more reservations about taking on a client that just received a Right to Sue.  This is because attorneys carefully chose which cases to file in federal court, and if the clock is ticking there is less time to examine your case. 
  • An attorney can do legal research and factual investigation during the EEOC investigation process.  This information is key to responding effectively to the Right to Sue. 
  • An attorney can discuss with you the likelihood of success in court and what litigation would involve.

Choosing the EEOC over the State Civil Rights Division

Colorado’s Civil Rights Division (CCRD) is sometimes the more appropriate place to file a Charge of Discrimination, because the jurisdiction encompasses more categories of protection.  If you were mistreated by your employer due to your Creed, Sexual Orientation (including transgender status), or Marriage to a Co-Worker, you are likely better off with the CCRD as opposed to the EEOC.

What You Can Do Now

If you are involved in the EEOC process without legal representation, do not wait to contact an attorney after you receive your Right to Sue.  Contact our firm here, we will happily discuss all your rights and the strengths of the claims you wish to pursue.

Click here for more information about the EEOC process.

What Employees Need To Know About The EEOC Process

More often than not, the EEOC (Equal Employment Opportunity Commission) will issue a decision that it was unable to conclude whether discrimination occurred and issues a Right to Sue.  When this happens, do not give up hope for your case.  If you are working with an attorney, they will have determined the true strength of you claim and will be able to advise you on what to do once you get a Right to Sue.   

The EEOC Process Can Take Years To Complete. 

The EEOC has systems in place to process complaints that come in, but they do not have unlimited resources.  It is not uncommon for a complaint to sit at the EEOC for two years before a determination is made.

Submitting a Charge to the EEOC

First, the Charging Party (the employee) must file a Charge of Discrimination (“Charge”) within 300 days of the discriminatory acts.  The Charge contains examples of the discriminatory acts and provides the applicable federal laws.

Mediation

After a Charge is filed, the EEOC may contact the employee and the employer to ask if they are interested in mediation.  Since the EEOC does not require mediation, there is no need to worry if you are not contacted.  Mediation is a voluntary, informal process available to resolve the issues presented in the Charge.  If both parties agree to mediation, a confidential agreement may be reached with the assistance of a mediator.  When one or both parties turns down mediation, the Charge is forwarded to an investigator.  The investigation process also begins if no agreement is reached during the mediation.  In our experience, many cases are resolved outside the EEOC process with the assistance of legal counsel. 

The Position Statement and Rebuttal

Once the Charge is received, the EEOC provides the employer with a copy of the Charge and assigns an EEOC Investigator to the matter.  At this point, the employer has the opportunity to respond to the Charge in a written Position Statement.  It can take months after the original filing for the employer to submit a Position Statement.  In this statement the employer typically provides their own version of the facts.  You can respond to the Position Statement in a written response called the Rebuttal.  The Rebuttal is an opportunity for you to expand on your personal experience of discrimination or retaliation with additional facts and provide a legal analysis of all the claims.  Having legal counsel at this time is in your best interest because the Charging Party is able to submit a Rebuttal with relevant case law and to organize all the legally significant facts. 

The EEOC Investigation

The next step is for the EEOC Investigator to review the information.  The EEOC Investigator has 180 days to complete their investigation from the date that the Charge is filed.  However, the investigation may be extended by another 180 days in certain circumstances.  It is not unusual for the EEOC Investigator to ask the parties for an extension.  The EEOC Investigator may seek additional information through witness interviews, or by speaking to the Charging Party or employer.  Once the investigation is complete, the EEOC will issue a decision. 

Typical Outcomes Of The Investigation

Generally, the EEOC Investigator will make one of three determinations:

1.  The EEOC is unable to conclude there is reasonable cause to believe that discrimination occurred.  The Charging Party is provided a Dismissal and Notice of Rights.  The Charging Party has 90 days to file a lawsuit if she or he wishes to proceed.

2.  The EEOC determines there is reasonable cause to believe discrimination occurred.  Both parties received a Letter or Determination inviting them to resolve the Charge through an informal process known as Conciliation.

3.  When Conciliation is unsuccessful and the EEOC decides not to litigate, the Charging Party will receive a Notice of Right to Sue.  The Charging Party has 90 days to file a lawsuit. 

What To Do If You Are Involved With The EEOC

If you are involved in the EEOC process without legal representation, do not wait to contact an attorney.  Our firm will discuss your rights and the strengths of the claims you wish to pursue.  Contact us here to set up an initial consultation.

Helpful Flow Chart

Here is a flowchart of the EEOC process that can be found on the EEOC’s website: https://www.eeoc.gov/employees/upload/charge_status_flow_chart.pdf

 

EEOC Charge Flow Chart