Eeoc And The Process

Eeoc And The Process

The mission of the EEOC, as set forth in its strategic plan, is to promote equal opportunity in employment through administrative and judicial enforcement of the federal civil rights laws, education and technical assistance.

Overview

The EEOC carries out its work at headquarters and in 50 field offices throughout the United States. Individuals who believe they have been discriminated against in employment begin the processes by filing administrative charges. Individual Commissioners may also initiate charges that the law has been violated. Through the investigation of charges, if the EEOC determines there is "reasonable cause" to believe that discrimination has occurred, it must then seek to conciliate the charge to reach a voluntary resolution between the charging party and the respondent. If conciliation is not successful, the EEOC may bring suit in federal court. Whenever the EEOC concludes its processing of a case, or earlier upon the request of a charging party, it issues a "notice of right to sue" which enables the charging party to bring an individual action in court. The Commission also issues regulatory and other forms of guidance interpreting the laws it enforces, is responsible for the federal sector employment discrimination program, provides funding and support to state and local fair employment practices agencies (FEPA's), and conducts broad-based outreach and technical assistance programs.

The Process

Once an employee or applicant files a charge, the EEOC then serves notice on the employer, usually by mail, that a charge has been filed against it. This notice normally includes a copy of the actual charge filed by the employee or applicant. Title VII and the ADA require that notice be served on the employer within 10 days after the Commission receives the charge, although the EEOC's workload often prevents it from meeting this statutory deadline. The EEOC's unintentional failure to meet this deadline, however, does not prevent the charge from proceeding, unless the employer can show that it was substantially prejudiced by the delay.

The filing of the charge triggers an EEOC investigation into whether or not there is reasonable cause to believe that the employer did in fact illegally discriminate against an individual in violation of Title VII, the ADEA the EPA and/or the ADA. There are no restrictions on the duration of an EEOC investigation, and the EEOC has the authority to inspect the employer's workplace, obtain employer documents, and interview witnesses. An employer may be asked to submit a written statement of position to explain its version of events. At some point in the investigation, a fact-finding conference might be held. Relatively informal, a fact-finding conference is attended by the charging party, respondent and necessary witnesses. No official record is made and witnesses are not placed under oath. Most employers bring counsel to the conference.

After concluding its investigation, the EEOC makes a determination as to whether there is reasonable cause to believe that the alleged discrimination occurred. A reasonable cause determination indicates that "it is more likely than not" that illegal discrimination took place. A no reasonable cause determination means that the EEOC has not found sufficient evidence to support a finding of discrimination. While a "no cause" finding does not bar the complaining party from subsequently filing suit in state or federal court on the same claim, as a practical matter most employees do not pursue their claims after the EEOC issues a "no cause" finding.

If the Commission does find reasonable cause to believe that discrimination occurred, it is obligated to try to eliminate the unlawful practice through a process known as "conciliation." In other words, it tries to settle the case. If the employee, the employer and the Commission reach an acceptable agreement, the parties will sign a conciliation agreement, which must provide that:

"h (1) a notice be posted informing employees of their right to be free from discrimination and that the employer will not engage in the unlawful conduct alleged in the charge;

"h (2) specific corrective action will be taken to prevent the discrimination from occurring again;

"h (3) the charging party will be placed in the position he or she would have occupied if the discrimination had not occurred;

"h (4) the charging party will be paid what he or she would have earned but for the discrimination, minus interim earnings; and

"h (5) the employer agrees to stop engaging in the discriminatory practice.

If the parties do not reach agreement within 30 days, the EEOC can then file suit in federal court. However, no statements made by any party during the conciliation process can be used in any subsequent lawsuit. The conciliation process is not a prerequisite for an individual to file a lawsuit in state or federal court. Under the ADEA, the employee must merely wait 60 days after filing a charge with the EEOC and the appropriate state agency before filing a lawsuit against the employer. Title VII and the ADA require the EEOC to issue a "Notice of Right to Sue," also known as a "right to sue letter," before an individual can file a suit in court. The right to sue letter can be issued at the complaining party's request or by the EEOC following its disposition of a discrimination charge. The employee has 90 days after receiving the right to sue letter to file suit.

Employers should take any charge of discrimination seriously. The employer must keep in mind that, at a minimum, it needs to have a legitimate, non-discriminatory reason for taking the action in question. In addition, an employer's response will be evaluated by persons who have a different perspective than the employer. What may appear to an employer as a benign, routine employment action can be perceived by a jury as the most pernicious, discriminatory deed. With this in mind, an employer should structure its response to show that its action was not only legal, but also fair.

The eleven steps discussed below have proven successful and effective methods employers can use to defend themselves against a charge of discrimination.

1. Review the Charge for Procedural Defects.

Many times, the employee fails to follow proper procedure