Winthrop Hubbard Part 1 Transcript

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Announcer: Fired from your job? Afraid you might be fired? Are you facing other problems at work? Listen to what the lawyers have to say about it. Here’s your host, Attorney Tom Spiggle.

Tom: Welcome to the “I Got Fired” podcast for those who’ve been fired or are afraid they might be. I’m your host Tom Spiggle with The Spiggle Law Firm, and we are pleased today to have one of our own, our law fellow, in our office, Mr. Winthrop Hubbard who is like me, a graduate of Georgetown University Law Center. And Winthrop has been with us for a number of months now, and has graduated and is anxiously awaiting what I’m sure will be passing bar results. So welcome, Winthrop.

Winthrop: Thank you.

Tom: Why don’t you tell just a little bit about yourself and where you’re from and then we’ll get started?

Winthrop: So like Tom mentioned, I’m a graduate of Georgetown University Law Center. I just finished up last May, and before that, I was been from the Northwest, so from the other Washington. So I went from Washington to Washington and I went to school at the University of Washington. And I’ve been lucky enough since graduation to be working for Tom at The Spiggle Law Firm.

Tom: Oh, that’s great. And I should have mentioned, what we’re gonna be talking about today and the reason that we have Winthrop on the program is the Equal Opportunity Employment Commission or the EEOC, which is one of the main federal players in the employment law space. And by that, I really mean it is the federal agency tasked with enforcing many of the federal anti-discrimination laws that we deal with it daily here at the firm. But Winthrop has the advantage of having worked inside the EEOC as an intern during law school and can give us a perspective on what it looks like on the other side of the window, so to speak, within the agency.

So, with that, let’s get started and let me say, a great website to learn about the EEOC and get substantive information about the laws that it enforces is eeoc.gov. It’s a wealth of information and is also the place where you go to file a charge which we will be talking about shortly. So Winthrop, let me ask you, if you can give us an overview of what the EEOC does.

Winthrop: Absolutely. So the EEOC is the federal government administrative agency that’s in charge of responding to discrimination in the workplace. So, that means discrimination on several bases. The primary statute is Title VII. So they look at age, race, sex, even gender discrimination, and disability, and it goes on a bit, including genetic discrimination if you can believe it. But the federal agency, that’s the first stop for employees who believe that they have been discriminated against. The rule that exists currently is that you have to exhaust something that’s called administrative remedies, and that’s the EEOC. So you have to go through that process before you’re allowed to file a lawsuit on the basis of these statutes. And so they have investigators that you will meet with who you will tell them what happened. They will reach out to the other side and they will find out what happened from the other side. And then there will be a little bit of a back-and-forth that can lead to several outcomes, but essentially, it’s an investigation that can last a long time and will lead to a determination one way or another from the EEOC about your case.

After they’ve made their determination, they’ll issue something that’s called a Notice of Right to Sue if they weren’t able to resolve it with their own internal mediation processes. And only after you’ve gotten that notice of right to sue can you actually file a lawsuit based on these claims.

Tom: Exactly. You know, one of the key things to remember for people who have, you know, facing discrimination, almost any kind of discrimination under federal law, as you mentioned, Winthrop, you have to file a charge with the EEOC. It’s part of the law. When they established the EEOC, the thinking was…and this is to some extent or another, so turned out to be effective, is that you didn’t want federal courts becoming basically HR departments for, you know, the private sector. And so they established the EEOC to allow it to investigate, and as you mentioned, Winthrop, try to mediate many of these disputes before they go to federal court.

So that means that any of these laws, you cannot just march down a federal court or state court and file a lawsuit. You have to first file with the EEOC. So let’s talk when we’re gonna get into a minute, how you do that, but let me ask you, Winthrop, about deadlines. How long do you have to file something with the EEOC?

Winthrop: It depends a little bit, but it’s either 180 days or 300 days. So, if your state has a law that protects against these types of discrimination, then it’s going to be 300 days, in your state or your county. If your state does not have a law like that in place, you’re only going to have 180 days to file, and that clock starts ticking from the last incident of discrimination. So that is, oftentimes, termination, but it could also be something like the last harassment incident, or, for instance, when they made the decision that they would terminate you. That could also be the instant that sets that clock ticking. So you have 180 days, if your state or your county does not have a protection in place for discrimination in the workplace, or 300 days if your state does. Most states do, but not everywhere.

Tom: If somebody’s listening to this and they’re like, “Well, I just don’t know if my state has one of these.” How might they go about finding out?

Winthrop: Well, they should absolutely check on that EEOC website that you mentioned earlier. There will be a list of…you can dig through there and find a list of state laws fairly easily, I think.

Tom: Absolutely. Another thing that they can do, and going to the website is probably the quickest, but you can also call, you know, EEOC office. Now, if you do that, you should be prepared to wait. They have, like, tend to get backed up on the call volume, and you can sometimes wait an hour or more before you get that information. And the term for, you know… Well, let me back up and say, talk to me a little bit about, you know, with these state laws, the option for filing with a state agency. How does that work?

Winthrop: Right. If your state has an agency or the county that you live in has an agency, the EEOC calls them Fair Employment Practice Agencies or FEPAs. Basically, they’re the local version of the EEOC. So you can choose to file with your local agency or with the EEOC itself, and either way, no matter what you do, they’ll be cross-filed with the other one. So for instance, if you were to file with the EEOC, they would cross-file that claim with the local agency, but the EEOC would be the one to investigate it. Similarly, if you filed with your local agency, they would cross-file it with the EEOC and the local agency would be the one to investigate it.

There’s some cost-benefit analysis that you can do there. The local agencies have some different processes that they’ll undergo. For instance, the DC Office of Human Rights, which is the name of the local agency there, has mandatory mediation. So, basically, both parties have to come to the table, whereas the EEOC itself has voluntary mediation. So it’s something that they offer, but are not…that they don’t compel parties to attend. Does that answer your question, Tom?

Tom: Yeah, absolutely. And another point to raise with the state or our local agencies is that they will also investigate state and local ordinances, which the EEOC will not because they’re not charged with that. So for example, you mentioned the District of Columbia, the DC office of Human Rights. If you file there, they will investigate your claim, not only under Title VII, which is the Civil Rights Act of 1964, which is the big federal laws, you know, that the EEOC is charged with investigating, but also under the DC Human Rights Act.

So, in Northern Virginia where some of our offices is, you know, if you were in Arlington, Fairfax, Alexandria, all of those counties have local ordinances. And if you file with one of those local…they are the county agencies. If you file with one of those local county agencies, they will, as you mentioned, Winthrop, not only cross-file with the EEOC, they will also investigate your claim under state law and local ordinances. So there can be…I think all things being equal, you know, we usually advise clients to…if there’s an option, to file with your local agency because they have that function of investigating their local claims. And as you mentioned, Winthrop, sometimes, they have better procedures than the EEOC.

As you pointed out, you know, in DC, there is mandatory mediation. With the EEOC, it is not mandatory. If you, you know, there’s mediation and your employer doesn’t want to play ball, the EEOC cannot force them into mediation. So, all things being equal, you should file with your state or county agency. And, you know, in terms of finding out whether or not your state or county has such an agency, it’s not failsafe, but generally, if you search for, you know, human rights in your county or human rights law in your state, you will pull up the agency that enforces it. You can also, again, you can try, you know, calling the EEOC or looking on the website. They do have a list, these Fair Employment Practices Agencies on the EEOC website, and you can get their contact information there.

And in addition, a lot of times, the agencies might be closer to where you are. Every state has its own EEOC field office, but it may not be…and you can call them and file a charge. You don’t need to actually go in to do it, but it can be more convenient to go to the state agency. Also, you know, again, this is just a general rule, not always true, but sometimes, the state agencies have more resources at least in terms of investigator time than the EEOC does. So there is, at least, some chance that you will get a more thorough investigation from your state agency than you will with the EEOC.

And one thing I should mention, you know, the EEOC… Well, let me ask you this, Winthrop, and I don’t remember which side you worked on over there. Did you do any work with the EEO side or were you on like private sector EEOC?

Winthrop: I was in the private sector intake. So I was mainly focused on private sector employees.

Tom: So one thing to mention is that if you were a federal employee, you will have your local EEO administrator and you would have to file a charge or complaint with your local office, with your internal office. And those timeframes can be very short, usually 45 days, so if you’re a federal employee, the same law applies, but the procedure is very different. It is also ultimately enforced by the EEOC, but the procedures are slightly different and you have shorter timeframes. So if you are a federal employee, you want to be careful with those deadlines because as, Winthrop, you were just talking about, these are hard and fast rules. If you don’t file…you know, if you’re in a state without a state law that gives you the extra, you know, days, get you to 300, so you only have 180, if you file it up day 181, too bad. It doesn’t matter how strong your case is, you are out of luck, and the same for states with 300 days.

And I should mention all of the states in the DMV area are 300-day states. So if you’re in D.C., if you’re in Virginia, if you’re in Maryland, you have 300 days from the last date of discrimination to file, but if you file within 301, then you are out of luck. So, you know, I would say for somebody where, you know, if something has just happened to you, you’ve obviously got some time. And I mentioned this just because we do see people who are really…I mean, understandably, you want to act quickly for many reasons when you’ve been fired, or when you’ve been discriminated against while you’re still at work, and you want to take these deadlines seriously. But with that said, you do want to take your time before you rush out and hire, or feel like you need to hire a lawyer right away. And I say that just because we’ve got a number of clients come to us after hiring a lawyer that was not a good fit for them and the reason they did that is because they acted, you know, too quickly, too rashly, because they thought they were under a deadline that was not there.

So take the deadline seriously, but if you have time, you know, if you’ve just been fired and that’s the last date of discrimination, then take your time to consider your options before you hire a lawyer. And another possibility is you can always consult with a lawyer. It doesn’t mean you have to hire them. You can listen to some of our other shows on the “I Got Fired” podcast where we talk about how you go about finding a lawyer and hiring them for some tips about that. So just remember, if you’re a federal employee, it is slightly different.

Now, Winthrop, you talked earlier about some of the laws enforced by the EEOC. Talk to us a little bit more about that. What are some of the laws that it’s not just Title VII? What are some of the… Well, talk to us about Title VII and some of the other laws that the EEOC looks at.

Winthrop: Sure. So Title VII is the, like you said, Civil Rights Act law and it protects…and having to list these off, and I know I’m gonna miss one, so race, sex, and color, as well as…and national origin. That’s Title VII. Right, Tom?

Tom: That’s right.

Winthrop: So race and color sounds similar, but there can be discrimination where it’s not because of that you’re, for instance, African-American but that you’re lighter-skinned or darker-skinned African-American and that can lead to discrimination. So that is there. And the national origin also sounds similar to race, but it’s actually about, you know, where you are from. For instance, it can be based on accents discrimination or, you know, for whatever reason, somebody doesn’t like people who are from a certain country. If you’re from a, like a European country and somebody doesn’t like that, that could be a form of discrimination as well that’s different than race itself.

And then sex is relatively straightforward. Obviously, they’re generally talking about male or female discrimination, but they can also expand it sometimes, narrowly to sexual orientation discrimination as well, recently. So basically, it’s based on this idea of sex stereotyping where you are being discriminated against because you’re not following the stereotypical norms for your sex. So those are the laws that are generally covered by Title VII that the EEOC will attempt to enforce.

Tom: And then the EEOC has jurisdiction over other laws. You want to talk about some of those?

Winthrop: Sure. Sure. So we have Americans with Disabilities Act, so the ADA. So that covers people who have some sort of disability that impairs a major life function, and expand it to generally include almost anything, really. So, if your disability affects your ability to walk, to talk, to move, to write, to be able to sit for long periods of time, all of those things could be considered disabilities under the Americans Disabilities Act. So that covers, not only discrimination, but also the process of reasonable accommodations. So, your employer has a duty to offer reasonable accommodations if those accommodations don’t interfere with your core ability…your ability to do the core elements of your job. And so they have a duty to engage in this interactive process a little bit. There’s a little bit of back and forth. And so the EEOC will look into to charges where there is perhaps an accommodation that’s not being given to an employee where there’s no good reason for it not to be there.

Then another law is the Age Discrimination and Employment Act, the ADEA. And so that protects age discrimination. So basically, it does limit…it’s only one way, though. So it only protects discrimination against older employees, so employees over 40 years old. So it won’t protect you against discrimination if you’re being discriminated against because you’re too young. That’s the major ones. Did I miss anything big, Tom?

Tom: No, I think that’s right. Well, I mean, that’s right. Did you have the Genetic Information Non-Discrimination Act?

Winthrop: It’s called GINA, very rare. And I didn’t see a single case when I was there. It’s discrimination on the basis of some sort of genetic results. It’s generally tied to some sort of medical testing that your company got ahold of that led them to discriminate against you for one reason or another, but like I said, it’s relatively rare. It’s unlikely that you have it. If you need to look up some more specifics, I would check it out on the on the EEOC website. There is a section there that they’ll go over that for you, but it’s very rare.

Tom: Yeah, absolutely. I think it’ll become less rare, you know, as time goes on, but genetics…you know, access to genetic material becomes more ubiquitous, but anyway, it’s something to be aware of. There have been some cases…you’re right. There are not very many of them, and we’ve not handled any of them, but there have been some cases involving employer wellness plans and their access to genetic information, so just something to be aware of.

You know, and if you have a question about whether or not you were covered by the EEOC, you can always call them. You know, you can always call and talk to one of their intake people. Generally, they’re pretty good. Now, I will say that like all agencies, they’re not always 100% correct. For instance, I know that, you know…this sounds pretty bad. If you try to…and we’ll talk about this, get to this in a minute, but the mechanics of filing a charge, if you try to file a charge electronically from Virginia, the computer will tell you if you’re outside of 180 days, it won’t let you file because it thinks that you have 180-day limit when in fact, in Virginia, you have 300. So you’ve gotta be a little careful, but you can call the agency and ask about whether you’re covered by one of these laws.

Of course, you can always consult a lawyer. So, you know, you can listen to one of our, just like I said earlier, our episodes about how to find a lawyer. There are some other resources Avvo, avvo.com is a pretty good resource where you can go and ask single questions like that, and generally, be assured that you’re getting a correct answer. And most of those services are free there for asking a question about whether you are covered, you know, which agency covers you.

Another thing to mention is the threshold number of employees. You know, for Title VII or the Americans with Disabilities Act to apply, your company has to have 15 or more employees before the law covers you. So, if you work for a small mom-and-pop shop, you know, and are subject to discrimination, you may be covered by state or local ordinances, but if it’s under 15 employees, you are not gonna be covered by the EEOC and they can’t handle your case. And for the Age Discrimination and Employment Act, the number is actually 20. These are very, clearly, very complicated issues, and this is why it is beneficial if only to have a consult or at least talk to a lawyer because there is a lot of…and a lawyer who does employment law because there are a lot of needles to thread to figure out whether or not you are covered by the agency, and how best to proceed. Talk to me a little bit about the 15-employee threshold. What about…

Winthrop: Sure. I just realized we did miss one and I knew we would, one class of people which is religion. The Title VII also covers religious-based discrimination. And similar to, but not exactly similar to disability, they do have a obligation to provide accommodations as long as that accommodation is not more than a minimal burden on the operation of the business. So I did want to get back to that really quickly, that Title VII also does cover religion.

Tom: Absolutely. It’s a big one. That was a good catch. It was a good catch. So let’s talk about the 15-employee threshold and joint employer. When does that come up and how does that work?

Winthrop: That’s right. So, like you mentioned earlier, Title VII federal law only covers employers with more than 15 employees. And that can be pretty limiting if you’re working at a small business. It is good to note that state laws and county laws can reduce that number down. So, if that’s the case, that’s another reason for you to file with a local agency because like Tom said, they will enforce state laws, and a lot of times, those laws could reduce the number. I think, and correct on this, Tom, but the District of Columbia has a zero employee level so that you can…or one. You’d be one, one employee.

But like Tom’s mentioned really briefly there, there’s also something that you should be aware of where it’s joint employer status. So, essentially, we generally think of your employer, you know, as whoever is signing your paychecks, but it also could be a greater organization, another party that does have control over your employment status. So for instance, if somebody…if you’re working for a subsidiary of another company and the greater company has control over your hours, your, like, hiring and firing and those types of issues, there’s an analysis that goes into this, of course, but it could be the case that even though the smaller company that you work for doesn’t have the correct number of employees, if there’s a larger company above it, there could be a joint employer status going on where the combined employees between those 2 could be more than 15 and could be eligible then for Title VII protections.

Tom: Absolutely right. All right. So I think we’ve thoroughly confused everybody now about EEOC and how confusing it is. And again, you know, you can…if you’re unsure, you can always call the agency. And the other thing you can do is you can always just try to file a charge. Again, like joint employer issues, sometimes can be very difficult to figure out and you may not even know whether or not, you know, you meet…you know, your company has a joint employer relationship. And even if it’s not joint employer, sometimes employers will…you know, the EEOC…let me back up a second, the EEOC takes a very expansive view of number of employees.

So for instance, even if you work for a smaller organization and they say they only have 14 employees, but on further investigation, it’s found that they have 3 contractors, all of whom have been improperly classified as contractors and the EEO says, “No, they should be considered employees of your company, and so therefore, you’re over the 15-person employee threshold,” you know, that would get you over the line, but again, you’re not gonna necessarily know that or be able to make that call. So it’s always better safe than sorry to go ahead and file a charge if you have a question about it.

And let me say, you know, there are a number of laws that you don’t… Well, there is one law in particular that it’s optional as to whether or not you file with the EEOC, and that is the Equal Pay Act. EEOC enforces the Equal Pay Act, and the Equal Pay Act is basically what it sounds like. It’s a federal law that requires employers… Well, it disallows employers from having, you know, basing pay differentials on sex. So they can’t…and it’s mostly women, but they can’t pay, you know, women less just because they are women. And we’ve seen a bunch of activity under this law about pay differential, but this is one where you can file with the EEOC if you want to, but you don’t have to.

Again, that can further confuse matters. And filing with the EEOC for equal payout cases does not stop the statute of limitations in that case, which is different from all the other laws. So, for example, let’s say, you know, you file at day 299 for, you know, a discrimination violation. It doesn’t matter how long it takes the agency to investigate. You have stopped the statute of limitations. Your rights are preserved while the agency investigates. That’s not true for the Equal Pay Act. The Equal Pay Act, you can go straight to court to file if you want.

There are also some laws that one might think the EEOC enforces, but it doesn’t. Wage violations, Family Medical Leave Act violations, these are enforced by the Department of Labor. So you can go to dol.gov to look at some of those laws, and the difference with those laws is that you don’t have to file. You can file those with the Department of Labor, but you are not required to. You can go straight to federal court. You know, you don’t need your right to sue. And then there’s one other law that people should be aware of that also does not require administrative exhaustion. You don’t have to file with any administrative agency, and that is a claim that’s called Section 1981, and it’s primarily a race claim. It’s an old, old statute, and it is, if you are discriminated on the basis of race in your employment, then you can bring those claims directly in federal court. In most states…again, this varies, another reason to talk to a lawyer, but this varies. In most states, there is a 4-year statute of limitations under Section 1981 which means it’s particularly useful if you find yourself past, let’s say, the 180 or 380 days to file with the EEOC for race discrimination, you still have a 1981 claim. So it’s something to just keep in your mind if you are the subject of race discrimination.

Unfortunately, unless there was a state law, and sometimes there are, but there’s no equivalent for the other categories, for religion, for sex-based discrimination. You’ve got to get those before the EEOC. And there are some tactical reasons why this is important. That is whether or not you have to file with an agency or not, and the tactical ones are, obviously, if you can file straight in federal court, you cut out a lot of time, right? You don’t have to wait…you know, you don’t have to file with an administrative agency. You don’t have to wait for them to make their decision. You can go straight to federal court and federal court really puts the heat on defendants, employers, often employers, much more effectively than the EEOC does. So there can be some tactical advantages to that.

However, let me say, there are some benefits to filing with the EEOC, and that is that, you know, one, the agency will do an investigation for free. All those, we’ll talk about in a minute. Sometimes, the investigation can be fairly minimal, and there’s mediation. You know, it can be mandatory if you’re at a state agency like the DC Office of Human Rights, or if you’re at the EEOC and it’s not mandatory, but both sides agree to mediate. And our experience is often that’s true. Both the defendant employer will and we always recommend that our clients go to mediation, and, you know, that’s done, again, at no cost to you. Sometimes, the mediators are very good. Sometimes, they’re not, but, you know, it gives you a chance to get everybody to the table and see if you can settle it without having to go to court because all the court does put pressure on defendants in the way that the EEOC does not, and also puts pressure on plaintiffs and can be expensive particularly if you are paying for your lawyer on a flat fee or an hourly basis.

So, there are many different tactical decisions about when and how to file these complaints or file these charges. And again, you know, I sound like a broken record, but it is true to have an experienced attorney, kind of…it’s hard even somebody who’s very bright and well-educated, unless you have some experience with this, it can be difficult to thread all of those needles. And, you know,as Winthrop, as you and I were just talking about, there are often state claims that are involved, which can have different statute of limitations which can be filed in state court without having to exhaust administrative remedies. So, you know, for example, you know, there are sexual harassment claims, but if there’s touching involved, that can be a civil assault and battery charge that can be filed in state court.

There are state discrimination laws that can be filed in state court. They’re just a thicket of options and many…and just even just, you know, what are, in some ways, plain vanilla employment cases, and the EEOC is just a part of that. So, anything else you want to add on that note before we move to actually how we file a charge with the EEOC?

Winthrop: No, I think we’re good.

Tom: You know, we beat down to death. Okay, good.

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