Most federal discrimination laws require that you file a charge with the EEOC or its local equivalent before you can file a complaint in court. The theory is that your employer should have notice of your complaint and the EEOC should be able to investigate your claims before you file an expensive and time-consuming lawsuit.
In many states, you have only 180 days to file a charge with the EEOC or you will lose your right to sue forever, no matter how blatant the discrimination. If you work for a government organization, you may have as few as forty-five days.
So, if you are pregnant and your boss fires you, saying, “Oh, I know you are doing a great job, but we know you’re going to quit as soon as your maternity leave is over, and here’s a letter saying just that,” you lose if you wait 181 days to tell the EEOC.
If you have time before the 180 days, take the time to call a lawyer. If you don’t, call the EEOC yourself (be prepared to wait for an hour or more). The toll-free number is (800) 669-4000. A lawyer can always fix things later. But no lawyer can fix the problem if you don’t file. It’s over—done. If you don’t have to protect your case by filing within the 180 days—for instance, if you have a wage and hour claim, which is not covered by the EEOC—the intake officer will let you know.
In some instances, you may be able to file with a state or county agency and have a longer deadline of up to three hundred days. Filing with some of these agencies is the same as filing with the EEOC and may offer some other advantages. For instance, these agencies may conduct more intensive investigations and offer additional protections under applicable state laws. For a list of some state agencies that can help, visit this website (http://www.thelaw.com/guide/employment/list-of-state-fair-employment-practices-agencies).
Filing a Charge of Discrimination
Filing with the EEOC is an easy process and primarily involves filling out a two-page form and checking some boxes. Though it helps to have an attorney, the system is designed to be used by nonattorneys, so it is not terribly complicated. You can find the complaint forms online. You can also just walk into your local EEOC office and sit down with someone to file a claim.
The sad truth is that the EEOC is an underfunded agency, so your complaint is unlikely to receive a thorough investigation before the EEOC declines to pursue it. So, don’t get your hopes up. But you must complete this process before you can go to court, so stick with it.
After you fill out the form, the EEOC will notify your employer by mail that you have filed. Within a few weeks, your case will be assigned to an investigator, who will help you fill out a “charge.” The charge, which is a summary of your complaint, is the official start of the EEOC process. The charge need not contain every detail of what happened to you at work—just the facts necessary to establish that discrimination occurred.
At some point after the charge is filed, your employer will submit its own position statement to the EEOC. This document is not provided to you, unfortunately. You can submit a Freedom of Information Act (FOIA) request and get a summary of the statement from the EEOC.
Once you’ve filed a charge, be prepared to wait. Your case is likely to languish for some time. This doesn’t mean that you (or, ideally, your attorney) are prevented from continuing to work on your case. Indeed, you can settle with your company at any point in the process. So, just because the EEOC isn’t moving quickly doesn’t mean that you can’t make progress on your case. Indeed, I have settled many cases while they are pending at the EEOC.
The Intake Process
Once the EEOC finally reviews your charge, it will put it in one of three informal categories: (1) charges that lack any merit, (2) charges that might have merit that the EEOC will investigate, and (3) charges that the EEOC has a strong interest in and may take to litigation.
Those in the first category are not offered mediation through the EEOC; instead, they are sent what is called a “right-to-sue” letter. This short form letter says that the EEOC has determined that there is insufficient cause to continue with your case, but that you can proceed to federal court if you choose. You have ninety days to file in federal court once you have received that letter. Indeed, you have to have this letter before you are even allowed to proceed with a case in court. Rest assured that nothing about the EEOC process can be used in court. So, the fact that the EEOC has refused to take your case means little. The EEOC rejects the vast majority of the charges filed with it.
However, if the EEOC rejects your charge quickly, while it may not mean that you will lose your case, it does mean that the EEOC found it weak enough not to proceed with an investigation. This is not a sign that you should give up, but you should use it as an opportunity to consider whether your case is worth pursuing. This is a discussion you should have with your attorney if you have one.
The second, and largest, category of EEOC charges includes the charges that the EEOC deems worthy of investigation. Before assigning it to an investigator, the EEOC will offer mediation through the EEOC. This is not mandatory, so either side can decline.
My view, which I believe is shared by most employment attorneys, is that mediation is worth doing, even if it is unlikely that you will reach a settlement. The reason is that it gives you a chance to sit down with the other side to talk about the case. At the very least, you may learn exactly what defense the company believes it has. (Your employer is likely to agree to mediation for the same reason; it may be the first time its attorney has a chance to see you—and your attorney—to size him or her up.) Mediation is an informal process conducted at the EEOC office. Everything said in mediation is confidential and cannot be used in the litigation. The EEOC will require both sides to sign a form indicating that these rules are understood. (By the way, almost all mediators use this same format, even outside the EEOC.) We will talk more about mediation in chapter 18.
As a result of underfunding, the EEOC’s case managers rarely conduct a thorough investigation. For instance, they don’t even conduct an in-person interview; it’s all handled over the phone. The agency also litigates a fraction of the cases it takes in. If you want to really depress yourself, review the agency’s litigation statistics, especially when compared to the number of charges it receives.
So, even though you may be required to file with the EEOC, expect that you may still need to go to court. At the end of the vast majority of cases, the EEOC finds no cause to take the case and issues a right-to-sue letter. Often, the agency takes a long time before it puts you out of your misery by giving you the right-to-sue letter. Sometimes it can take years.
Let me ask you this: Do you think your case is stronger or weaker after it sits around for a year or more? Time is not your friend. You should know that you are only required to give the agency 180 days to finish its investigation. It never finishes in 180 days. After that point, you can request a right-to-sue letter and the agency must give you one. Of course, you’d better be prepared to sue if you ask for that letter.
Regardless of what happens with the EEOC, you must receive a right-to-sue letter before you can file in court. And again, once you have this letter, you have only ninety days to file a complaint in court or you lose your right to sue forever.
Here’s the moral: file with the EEOC soon. If you are offered the opportunity to mediate your case, take it. And hire a lawyer at least for that part. It’s your best and probably only chance to get anything out of the case. If that fails, don’t expect that the EEOC is going to help. Figure out how to move forward on your own.