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This Won’t Go to Court!
SOP’s Essential During Cross-Examination
Current Views on Note-Taking
Experts Agree – Documenting DFIR Investigations is Important
Lawyers View on Contemporaneous Notes
Destroy Notes After an Examination is Complete?
I’ll Remember It!
There are contradicting views on what Contemporaneous Examination Notes are and how they should be written.
Some Digital Forensic Examiners even question if they are actually required when conducting Digital Forensics and Incident Response (DFIR) investigations.
You might be thinking…. THIS IS GREAT!
Well, not exactly.
I believe that most professionals within the DFIR community understand that Contemporaneous Notes are a requirement based on professional training and recommendations by Digital Forensic Guides and leading DFIR Organizations.
The reality is that contemporaneous notes are often not completed nor are questions raised about their absence. As a result, some DFIR Examiners say they aren’t really required if no one asks for them.
But as a professional, should you be looking for shortcuts to complete your DFIR investigations?
And would failing to create documentation even save time in the long run?
At some point during your investigation, you will likely have to write a report explaining your findings which is a lot easier to complete when you have detailed notes to refer to.
This is especially true if those notes include screen captures of results during the investigation.
And if you are going to make notes, they should be made contemporaneously to the examination as this has more weight within criminal and civil court should you find yourself on the stand.
In fact, …
If you didn’t write your notes contemporaneously, the judge may rule that you are not able to refer to your notes while on the stand. (see case law below)
If this happens, will you be able to remember the details of an investigation that occurred 12 – 36 months prior?
Will your evidence have any credibility without notes?
As discussed below, it likely won’t.
And when it comes to court, even lawyers are expected to take contemporaneous notes.
In the court case below, a prosecutor had taken the stand to defend her actions to charge two officers for ‘attempt to obstruct justice’.
The judge scolded the prosecutor for failing to take detailed notes at the time of an important conversation with these two officers.
~ R. v. Clark et al – 2012 MBQB 246
We have to remember that the reliability of a testimony is not binary, in that it is believed or not believed. It is up to the judge or jury to determine how much ‘weight’ they are going to put on the testimony you provide which will be based on how credible you appear while testifying.
Those of us who have been in law enforcement for a number of years quickly realize that we are horrible at predicting what investigations will end up in court and which ones will be decided without our involvement.
Nearly all investigations I thought would end up in court have failed to result in that outcome with those investigations either ending in a Stay of Proceedings or Guilty Plea.
The reality is that you can’t predict which investigations will require you to testify and have the pleasure of being cross-examined by an opposing legal counsel.
So, you should treat every investigation as if you will have to defend your work in Supreme Court.
Even when Contemporaneous Notes are completed by DFIR examiners, many have different definitions of “Contemporaneous Notes”. The most concerning is the belief that notes taken at any time will suffice as “contemporaneous”.
But as we will see below, this couldn’t be farther from the truth.
Failing to complete tasks you were either trained or instructed to do may not cause any issues 97% of the time. However, it’s the files that matter where the 3% could greatly affect the outcome of the investigations as well as your professional reputation.
If you gathered solid evidence against a suspect, what approach will the defense take to defend their client?
You guessed it, they will question your qualifications as an expert and whether you followed your training.
Were you trained to take contemporaneous notes during an investigation?
If yes, how do you plan to defend yourself against a defense expert questioning your professionalism if you clearly didn’t follow the training you were provided or the Standard Operating Procedures (SOPs) written by your organization?
Don’t believe this will happen?
This is exactly what one leading defense counsel suggests…
Going on to provide an example of a typical cross-examination on police note taking…
The article is well worth a read if you want to see how defense lawyers think when they are defending a client.
Recently, a number of leaders in DFIR such as Brett Shavers’s and Harlan Carvey provided their opinions on note-taking after @mattnotmax brought up the subject in his blog.
In Brett’s article, he believes that investigators fail to make notes for one of the following reasons:
Brett goes into detail on his point about the “Belief they are unimportant” stating…
If you don’t believe notes are important, one day you will find out just how important they are.
This could be due to personal embarrassment or a hit on your professional reputation when all you had to do was take a few notes a few months earlier on one of those few cases you were working.
Regret sucks, let me tell you…
I think this is a great list, but I would also add:
The DFIR community is constantly expanding with new examiners entering the field every year. Many of these new examiners are young and ambitious, but also overwhelmed at the amount of information they have to learn and go through.
When it comes to note-taking, they know they should, but how?
As a result, they try several different ways to document their examination during the same investigation resulting in a mis-mash of notes which are hard to put together.
Further confusion results when a senior examiner says “Don’t worry about it. You don’t have to disclose that stuff as its just ‘working copy’.
If you are told that you don’t need to include some information because it is just working copy, ask them where they heard that. Often it will be from a fellow member when they started in the section.
This is called “Hearsay” and won’t help you in court.
When in doubt, ask a trusted lawyer in your area for advice on what is considered ‘working copy’.
Brett goes on to provide some useful tips on Note Taking, including:
* “Keep your notepads. Don’t tear out sheets…”
Keep this last point in mind when we discuss MS Word and OneNote since when you use word processing applications to take notes, you are essentially removing your ability to prove that you didn’t make changes or remove notes you previously made.
Brett also provides some real-life Win/Fail Scenario’s involving note-taking which is well worth a read.
So what do the experts say?
Recently, experts and influential leaders in Digital Forensics provided quotes on the Importance of Documentation.
Contemporaneous Notes are unavoidable, thus inescapable, when it comes to examining evidence and are akin to the standard of Ethics.
They hold the examiner to their own account of conduct when no one else is around to witness what is happening.
You may never need to defend your DFIR investigation in court, but you should complete every case as if you would be testifying as an expert in Supreme Court.
Because, you will never know which files are going to end up in court. By the time you are notified, it will be too late to create Contemporaneous Notes.
Since we just brought up court, what do lawyers have to say about Contemporaneous Notes?
I recently interviewed Stuart Rudner for his legal opinion regarding Contemporaneous Notes. Stuart stated:
Stuart goes on to discuss the need to keep original copies of digital notes and not alter those notes unless you can show the changes that were made.
Changing notes and failing to properly disclose what changes were made while claiming the notes to be contemporaneously made could lead to legal issues and questions about your credibility.
When thinking about court, always remember the following quote.
In some American states, it is common practice to destroy both paper and electronic notes once a final examination report has been written.
If the destruction of examination notes is currently allowed or mandated where you work, you should ask yourself:
These questions formed the argument by defense in a New Jersey Supreme Court Decision in which a new trial was ordered in a previous murder conviction.
~ NJ Supreme Court – State v. Dabas (FindLaw.com)
As you can see from the above decision, even though Investigator Dando followed police practices at the time, his decision to destroy the notes still caused issues at trial.
Let me be clear…
You should FOLLOW your department’s Standard Operating Procedures (SOP) or documented procedures.
But if your department does encourage the destruction of notes, then I would suggest you send them this article, confirm with them that they want this practice to continue and document your discussion.
In many regions, warrants authorizing forensic examinations are becoming restrictive with respect to the type of data that can be analyzed and included in forensic reports.
In practice, you may observe other evidence in plain view (eg: Child abuse material) that does not fit within the restrictions of the warrant.
In this case, it is suggested that you immediately stop your current examination and re-apply for a new warrant that includes the evidence you observed in plain view.
If you fail to take proper contemporaneous notes or destroy your notes upon completion of a report, would you be able to properly articulate how you came across the images or data that you weren’t authorized to have searched which resulted in a more comprehensive warrant being sought?
If not, you risk having all your evidence excluded from the trial.
Many investigators fail to recognize that obtaining a new warrant is easy in comparison to defending the merits of the new warrant at trial.
Are you willing to lose all your evidence due to a lack of proper documentation?
You might be thinking…
I don’t need to take notes, I’ll remember this!
But as R. v. Sharma (2014] O.J. No. 1289 indicated, as an investigator you can NOT rely on your memory for key facts during an investigation.
The judge also stated that…
case law is quite clear that absence of notes by a police officer in relation to pivotal issues diminishes the weight attached to their evidence.
The following relevant cases were discussed:
At this point, I hope it is CLEAR that you MUST document your DFIR investigations contemporaneously.
So, what tools should you use to document?
The rest of this article will explain HOW to properly create Contemporaneous Notes during your investigation.
DFIR Investigations will be documented in one of several ways:
Although it’s common to use scrap pieces of paper to quickly jot down information, they should not be used as a place to write notes during an examination unless other options discussed below are not available.
If scrap pieces of paper are used to document important information, this should be transcribed into your proper notes as soon as possible. Often, if done in a reasonable time frame, these transcribed notes will be considered contemporaneously written.
It is also recommended to keep these pieces of paper should they be requested at a later time.
This is the classic way of writing contemporaneous notes, relied upon in law enforcement for decades.
This form of documentation has continued to stand up to the scrutiny of the courts when properly completed.
When using this form of documentation, you must keep in mind the ELBOWS set of rules for writing notes
E – No Erasures
L – No Leaves torn out
B – No Blank spaces
O – No Overwriting
W – No Writing in margins
S – Statements to be written in direct speech
Notes should also be in a bound paper notebook with pre-printed page numbers.
Although widely accepted in courts, this often results in notes that are illegible and incomplete.
For many young examiners that can quickly type out long messages on a virtual mobile keyboard, the idea of handwriting notes seems like a step back in time. This makes it more difficult to convince young examiners to take notes in the first place.
If you correct spelling and grammatic mistakes, you make the notes harder to read resulting in an end product that appears unprofessional to those that need to read them.
I’ve even seen cases were the author of the note had a hard time reading and interpreting their own handwriting.
The issues are further compounded by investigators that believe that their notes are their notes and making them illegible will eliminate the opposing party from asking tough questions in court.
However, several court cases have clarified that this is not true.
Illegible notes do NOT constitute disclosure.
And the following decisions clarify the need to provide a typed copy of officer notes if the original is illegible.
Writing notes this classic way may be convenient, but I find it hard to believe that many would say it is an efficient use of time if you are adhering to all the requirements to write detailed contemporaneous notes that anyone can read and understand as required to satisfy full disclosure.
Given the court decisions discussed above, do you think Notebook Examples #1 (below) would cause any issues for full disclosure or if you wanted to use it in court to refresh your memory?
What issues would you face if you were on the stand and this was your notebook?
Okay, how about this example notebook?
In Notebook Example #2, wite-out® was used to make a correction to a note.
Do you think the defense attorney would have any issues with the above correction when you are being cross-examined in court, especially if the accused admitted to the crime?
Now that we fully understand the acceptable ways to write notes in a paper notebook, let’s discuss…
The use of MS Word and OneNote is becoming more common even in traditional settings like law enforcement where pen and paper have been the standard for decades. But…
I know this is a strong statement, but I strongly believe this as I will describe below.
If you don’t agree with me, then I encourage you to voice your thoughts in public forums, but please be prepared to prove your points with facts and
So why wouldn’t I ever trust MS Word or OneNote for Investigations?
It comes down to court disclosure and the requirement to provide accurate and detailed contemporaneous notes, but before we get into the issues of MS Word and OneNote, let’s discuss the many benefits of these great programs.
Yes, it is true.
MS Word and OneNote are great software applications.
I am actually using MS Word to type up this article and wouldn’t trust any other application for this purpose.
MS Word is designed to write articles and reports providing all the required tools like spell checker, word count and grammar correction.
OneNote is also an amazing product for quickly recording notes, handwritten sketches and allowing multi-user collaboration.
I am a big fan of both applications, but not if you need to create court-ready documentation.
Software products are designed with a purpose in mind. MS Word and OneNote were NOT designed to create contemporaneous notes for court purposes.
Before I get into the reasons why they shouldn’t be used for investigator notes, let me note the reasons why investigators are using these products currently.
As a result, some investigators feel electronic documentation provides a more professional form of their notes as they are able to correct these issues prior to providing them to colleagues or the courts.
I agree with this statement 100%.
But if notes can be changed at a later date with no previous history of the contents originally entered, can they really be considered and trusted to be contemporaneous?
As we discussed in “Lawyers View on Contemporaneous Notes”, altering contemporaneous notes after the fact could result in witness impeachment if the original note was not kept.
“Witness impeachment is the process of challenging the credibility of a witness in a trial. There are several ways by which a witness can properly be impeached.”
And does this open up Pandora’s Box for defense lawyer questioning?
Video’s showing how easily the Date & Time can be changed on an MS Word & PDF Document.
Will you be able to defend the authenticity of your MS Word or OneNote examination notes in court if questioned?
How will you explain changes?
Are you willing to be named in a judgement where the accused is found not guilty based on your lack of credible evidence?
The best option is to use an electronic note-taking system designed for court purposes so that you are confident in court.
Never Trust Notes Created with MS Word or OneNote?
I never stated that you shouldn’t TRUST notes created with MS Word or OneNote. I said…
But like everything in life, there are exceptions.
Your organization may have Document Management Systems (DMS) in place to track, manage and store electronic documents. As a result, MS Word and OneNote documents can be ingested into the DMS and therefore made immutable within the system.
To make your MS Word and OneNote documents immutable and court-ready, they can be added as attachments to Forensic Notes or copied into the editor.
Other organizations may have processes in place to Digitally Sign and Timestamp the documents as they are created.
But the reality is that most small and medium sized organization will not have any systems in place and this is why I believe you should never use MS Word or OneNote.
Neither product is designed to create court-ready documentation without using other systems or services to make the documents immutable.
But should you TRUST notes that haven’t been properly saved into a DMS or immutable system like Forensic Notes?
If there is no reason to question the credibility of the investigator or witness, then there is no reason to question the credibility of the notes they say they made.
A similar point was recently brought up in a Terrorism case (R. v. Hamdan, 2017 BCSC 676) within the BC Supreme Court (Canada).
The defense expert questioned the tools and systems used to acquire Open-Source (OSINT) evidence on the suspect.
The decision then discussed the Canadian Evidence Act.
 Section 31.5, though not referred to by the parties, allows a court to consider evidence about standards, procedure and usage when determining the admissibility of a document under any rule of law:
31.5 For the purpose of determining under any rule of law whether an electronic document is admissible, evidence may be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored, having regard to the type of business, enterprise or endeavour that used, recorded or stored the electronic document and the nature and purpose of the electronic document.
Within the judges’ decision, he writes…
 When I consider all of these circumstances, I conclude there is no basis for concluding that evidence was lost through unacceptable negligence…
The defence submission that the RCMP should have considered better software and techniques has some traction as of that time…
The RCMP understood it had accurate screenshots of those posts and the associated Timelines…
In these circumstances, I find that it was not unreasonable for the RCMP to continue with the process it had in place.
 This decision should not be seen as endorsing the use of less-than-forensic-grade software to capture and preserve social media evidence.
My conclusion that the police conduct did not reach a level of unacceptable negligence at the later stages of the investigation is driven, in large part, by three considerations:
first, the police efforts to preserve the evidence were genuine and extensive;
second, the Crown obligation to disclose relevant information appears to have been satisfied by the considerable material produced…
and third, the collection and preservation of social media evidence by the police is a relatively new process and, prior to this case, there was no established RCMP policy or procedure and no legal standard for doing so.
I expect that, if the police procedures do not improve, subsequent decisions may find the police action to be unreasonable.
 In summary, I conclude that Mr. Hamdan’s s. 7 right was not breached by the manner by which the Key Posts and associated Timelines were captured and preserved.
One of the key points from the above excerpts is that the judge accepted the evidence as the ‘police efforts to preserve the evidence were genuine and extensive’.
The judge had no reason to question the authenticity of the evidence or what it meant.
This would be the same for notes created in a less than fool-proof way where they are not made immutable.
But the judge did end by stating…
As a community, we need to look at ways to improve our processes and ensure significant cases are not lost due to technicalities or questions around a witness’s credibility unless there is evidence to support those concerns.
As a result of the above court case which specifically named “Hunchly” as a product designed to properly capture data during OSINT investigations, many departments are now purchasing and using this software to ensure they are following best practices going forward for all their open-source investigations.
Even Michael Bazzell, who is well known as an expert within the OSINT community recommends Hunchly saying..
Yes, unless you have a reason to question the credibility of the author.
If this is the case, the use of MS Word or OneNote could cause serious issues in the courtroom should the opposing party also question the authenticity of the notes created or if they were modified after the fact.
Electronic Note-Taking applications offer the best of both worlds if designed and used properly. But remember, not all applications are created equal.
When deciding on what electronic note-taking application you want to use, you will have to consider your specific needs and requirements not only now, but in the future when your case finally goes to trial.
Does the application:
Replicate court accepted practices, by
Secure your data, by
Make your evidence Immutable, by
Provide an intuitive & user-friendly interface, that allows you to
Provide advanced features, such as
Simplify Court Disclosure by:
And finally, is the application run and managed by trusted members in your community?
When choosing an Electronic Note-Taking Application, you should select an application that works the way you work instead of being forced to work within the constraints of the application they provide.
Forensic Notes has been designed to solve all the issues discussed in this article and is available both online (SaaS) and On-Premises.
In this article, I hope I was able to show you how to properly take contemporaneous notes during an investigation and why you should never use MS Word or OneNote for contemporaneous note-taking purposes.
Both are great products, but simply not designed to replicate paper bound notebooks which have been accepted in the courts for decades.
Some may continue to use a good pen and paper notebook to take notes during an investigation, but if you are looking to go digital, then Forensic Notes has been designed for you.
Have confidence when you go to court, knowing that the notes you created during your investigation will be accepted and trusted.
If you have any questions about Forensic Notes or regarding this article, please don’t hesitate to contact me directly.
Founder – Forensic Notes
Robert Merriott has been a municipal police officer for over 13 years working as a frontline police officer, tactical operator, and most recently as a detective in the Technological Crime Unit specializing in Digital Forensics and Cybercrime.
Prior to his policing career, Robert obtained a Bachelor of Science in Computer Information Systems and worked in the private sector as a web application developer. While working as a developer, Robert was awarded Microsoft MVP status and was a founding board member of the ASPInsiders, an organization that worked closely with Microsoft to provide expert feedback on the development of the ASP.NET web application framework.
Robert founded TwiceSafe Software Solutions Inc. (Forensic Notes) after realizing the need for a digital note-taking application that would meet the high standards of digital forensic evidence in the courts.
DISCLAIMER: This article is not meant to provide legal advice or information. Legal statements made are only provided as guidance for the reader to seek professional legal advice within their jurisdiction. No information contained within this article should be acted upon without discussing the merits of such information with a legal professional. The author of this article is NOT A LAWYER and takes no legal responsibility for the information presented.
Are you being treated unfairly at work?
Do you feel like your manager or co-worker is targeting you by making discriminating comments about your age, sex or ethnic background which has you feeling upset and emotionally drained?
Workplace discrimination can stop you from promotions, higher pay and the career you deserve.
Over the last 10 years, the Equal Employment Opportunity Commission (EEOC) which handles discrimination cases in the United States, has received over 91,000 individual charge filings per year.
Simply put…you are not alone!
Understanding how the EEOC operates is key to knowing how to handle workplace discrimination.
Once you understand your options and the mistakes to avoid when dealing with the EEOC, you will greatly increase your chances of a successful outcome.
Fulfill your career aspirations to work in a positive and supportive work environment.
The Equal Employment Opportunity Commission (EEOC)is a Federal agency in the United States which enforces employment laws that prohibit discrimination in the workplace.
The agency was established by the Civil Rights Act of 1964 when President Lyndon Johnson signed into law Title VII. President John F. Kennedy had initiated the Civil Rights legislation prior to his assassination.
The EEOC was tasked to enforce a variety of anti-discrimination laws including:
The EEOC is often the place of first recourse when an employee has a grievance against an employer. An employee must go through the EEOC and/or their state counterparts before trying to sue for discrimination in Federal court.
An employee can file a complaint with the EEOC against their employer if they believe they have been discriminated against on the basis of a variety of factors.
It is important to note that the EEOC only applies to employers with 15 or more employee’s under most federal acts. Complaints involving age discrimination (ADEA) require that the employer have 20 or more employees. However, when it comes to the Equal Pay Act (EPA), virtually all employees are covered.
If an employer is not covered by the EEOC, state or local anti-discrimination laws may be the employee’s next option. The EEOC or an employment lawyer will be able to provide the best advice given an employee’s particular situation.
In Canada, the appropriate organization depends on who the employer is. If it is the Federal agency or a workplace regulated by the Canada Labour Code, then workers are covered under the Canadian Human Rights Act, while others recourse to their Provincial or Territorial labor rights agency.
An employee can file a complaint with the EEOC against an employer if they believe they have been discriminated against on the basis of a variety of factors prohibited by law. These include:
Age discrimination is when an employer treats an individual unfairly or unfavorable because of their age.
The law prohibits discrimination when it comes to any aspect of employment, including hiring, firing, training, pay, job assignments, promotions and any other term or condition of employment.
Disability discrimination occurs when an employer treats a qualified individual unfairly or unfavorably because of their disability. An employer is required by law to provide reasonable accommodation to an employee or a job applicant with a disability.
The law also protects individuals who have a history of a disability such as cancer.
The Equal Pay Act requires that males and females in the same workplace receive equal pay for equal work.
It is illegal to discriminate against employee’s or job applicants because of genetic information.
employee’s are not allowed to use genetic information in making employment decisions and they are restricted from requesting any genetic information about employee’s or job applicants.
Harassment is when there is unwelcome conduct that is based on race, color, sex, religion, age (older than 40), pregnancy, national origin, genetic information and disability.
Treating applicants or employee’s unfavorably because of their national origin (country, ethnicity or accent) is considered discrimination under the law, and is prohibited.
Employers are prohibited from treating a woman unfavorably because of pregnancy, childbirth, or medical conditionthat is related to pregnancy or childbirth.
Race discrimination consists of treating an individual unfavorably based on their race or personal characteristics associated with their race such as skin color, complexion, facial features and hair texture.
The law protects individuals who belong to traditional and organized religions such as Christianity, Islam, Judaism, Hinduism and Buddhism. The law also protects people who hold religious, ethical or moral beliefs.
It is illegal to terminate, demote, harass or retaliate against anyone because of whistle-blowing or because they made a complaint about misconduct or filed a charge of discrimination.
It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
Sex discrimination involves treating someone unfavorably because of their sex, gender identity, sexual orientation and transgender status.
Sexual harassment is unlawful and can include unwelcome sexual advances, propositions for sexual favors, and any other verbal or physical harassment of a sexual nature. View more information on Workplace Sexual Harassment.
If a current or former employee believes that they have been a victim of unlawful employment discrimination, it is in their best interest to hire an attorney (if they can afford one) and file a complaint with the EEOC. There are several steps in the submission process when filing a complaint with the EEOC.
To bolster your case, you’ll definitely want a paper trail of abuse…These statements should be maintained with the date and time. At the earliest time possible, you want to have them validate an event. You will create an incident report. And get that time-stamped.
If a current or former employee believes that they have been a victim of unlawful employment discrimination, it is in their best interest to hire an employment lawyer (if they can afford one) and consider filing a complaint with the EEOC.
Before an employee decides to file a charge against their employer with the EEOC, it’s recommended that they complete an online assessment questionnaire via the Online EEOC Assessment System.
This is an online assessment tool that helps the employee decide if the EEOC is the correct agency to assist them.
If it is determined that the EEOC is the correct agency to assist after completing the EEOC online assessment questionnaire, the employee should complete an EEOC Online Intake Questionnaire that can be printed.
Should I File an EEOC Complaint?
There are Benefits and Risks (Pros/Cons) to filing an EEOC Complaint (referred to as a “charge”) and the decision to file or not file should only be made after careful consideration.
The printed Intake Questionnaire can either be mailed or delivered in person to the appropriate EEOC field office to begin the process of filing a charge.
The completion of the Intake Questionnaire and submission to the EEOC does not result in the filing of a charge with the EEOC. The questionnaire simply allows EEOC staff to better evaluate the situation of the employee to determine if the EEOC is appropriate given the employee’s particular situation.
A charge of discrimination (EEOC Form 5) can be filed at the EEOC office closest to where the employee filing the charge lives. However, the charge would likely be investigated by the EEOC office closest to where the discrimination actually took place.
If a U.S. citizen is working for an American company overseas, a charge should be filed with the EEOC field office closest to the employer’s corporate headquarters in the United States.
The EEOC Complaint Process can be completed:
Filing in Person
There are different procedures for each EEOC field office for appointments or walk-ins. It’s important to check with the EEOC’s field office closest to you for their office procedures.
A list of EEOC Locations can be found near the end of this page.
If filing in person, it’s important to bring information or documents that will help the EEOC understand the case.
At a minimum, an employee should bring:
Employee was told they were fired due to poor work performance. However, the employee believes it is because of her gender due to:
In this situation, it might be best to bring:
Time Limits for Filing a Charge
If an employee decides to file a charge of employment discrimination against their employer, there are deadlines on when the charge must be filed.
In general, the deadline is 180 calendar days since the incident occurred, which may be extended to 300 calendar days if a state of local agency enforces a state or local law that prohibits employment discrimination on the same basis.
It is important to note that the time limit applies to each instance of discrimination and is not normally based on the last incident. In other words, do not delay in contacting the EEOC under the belief that the clock has reset on all instances of discrimination by your employer simply because of a recent event.
The EEOC may not investigate older discriminatory events if it falls beyond the time limit. The one exception to this rule is “ongoing harassment” such as workplace bullying.
The EEOC does not clearly define “ongoing harassment” so it is always in the employee’s best interest to contact an employment attorney for clarification and advice to this rule if it potentially applies.
EEOC Age Discrimination Deadlines
The rules for age discrimination (ageism) vary by state and deadlines are only extended to 300 calendar days under specific circumstances, including:
Many complexities exist around the deadlines for filing a complaint with the EEOC.
Factors include the type of discrimination that occurred and when it took place.
Never rely on websites, including this website or even the EEOC website, when dealing with legal matters. Specific procedures can change at any time and information on websites may not be updated.
It is always advisable to contact an employment lawyer or a person at an EEOC District Office who will be your best choice to determine the exact deadline given your particular situation.
The employee filing the charge is able to bring anyone they want to the meeting, especially if language assistance is needed. Filers can also bring their employment lawyer, and although it’s recommended, it’s not required to hire an lawyer to file a charge.
Filing by Telephone
There isn’t an option to file charges over the phone, but the filing process can be initiated by calling 1-800-669-4000 to speed up the filing process.
The filer will be able to submit basic information which is forwarded to the EEOC field office closest to where they live. Once the EEOC has received the information, they will contact the filer to obtain additional information.
Filing by Mail
A charge can be filed by sending a letter to the EEOC via a postal service.
There is a long list of items that must be mailed to ensure your case is properly filed, so it is best to check the EEOC website (How to File) prior to sending any documents.
The list includes:
File EEOC Complaints Online
At this time, EEOC complaints can’t be filed online.
Once a charge is filed, the EEOC will:
The notice sent to the employer is known as a Notice of Charge of Discrimination (EEOC Form 131) or Notice of Charge of Discrimination in Jurisdictions where FEP Agency (FEPA) will initially process (EEOC Form 131-A).
Fair Employment Practices (FEP) Agencies (FEPAs) are found in states, counties, cities and towns that have local laws prohibiting discrimination.
The EEOC will classify the type of discrimination alleged by the complainant into one or many of the following acts:
Title VII also includes The Pregnancy Discrimination Act (PDA) which prohibits sex discrimination based on pregnancy.
In 2015, the EEOC filed 174 legal suits in federal district courts with 14 (12.4%) filed under multiple acts. In total 171 resolutions resulted in a total of $65.3 Million in monetary benefits.
If it is determined that the complainant’s claims do not fall under the laws which the EEOC enforces or the EEOC is unable to determine that the law was violated, investigation of the charge will be closed and the complainant notified accordingly.
Under these circumstances, the EEOC will send the complainant a Dismissal and Notice of Rights (EEOC Form 161).
Shortly after a charge is filed, the EEOC may contact both the employee and employer to ask if they are interested in participating in EEOC Mediation.
The decision to mediate is completely voluntary and if both parties agree, a mediator will help the employee and the employer to talk about the issues at hand and help them try to reach a voluntary settlement.
EEOC Mediators don’t make decisions on who is right or wrong, but they make suggestions on ways to resolve problems and disagreements. Usually, a charge can be resolved faster through mediation.
While it takes less than 3 months on average to resolve a charge through mediation, it can take 6 months or longer for a charge to be investigated.
A written signed agreement reached during EEOC Mediation is enforceable in court just like any other contract.
An EEOC Mediation session usually lasts between 3 to 4 hours, although the time can vary depending on how complicated the case is and if both sides are open to a mutually agreeable settlement.
There is no financial charge to either party to attend the mediation.
All parties to the charge are expected to attend the mediation session.
An employment lawyer is not required at the mediation, although either party may choose to utilize one. The mediator will decide what role the lawyer will play during the mediation.
If neither party is interested in mediation, the charge is forwarded to an investigator for investigation.
The charge will be investigated like any other charge.
If the charge is not sent to mediation, or if mediation doesn’t resolve the charge, the EEOC usually asks the employer to provide a written answer to the employee’s allegations called a “Respondent’s Position Statement”.
An EEOC Position Statement (Respondent’s Position Statement) should be fact-based clearly articulating all details of the alleged incident.
How the EEOC investigates a charge depends on the information provided by both sides.
The EEOC Investigation may necessitate a visit to the employer to hold interviews and gather documents, or it may require interviewing witnesses and asking for documents.
Once the investigation is complete, a final decision will be issued and the result is communicated to both parties.
This depends on many factors such as the amount of information that needs to be gathered and how forthcoming each side is in providing additional information as requested.
In 2015, the average EEOC Investigation took 10 months to complete. Parties can check the status of their charge by using EEOC’s Online Charge Status System.
If an employer refuses to cooperate with an EEOC investigation, the EEOC can issue an administrative subpoena to obtain documents, testimony or gain access to facilities.
One of EEOC’s goals is to allow both parties to come to a mutually agreeable settlement. For this reason, both sides are able to informally negotiate and settle at any time during the investigation or mediation.
Voluntary settlements have many advantages for the complainant who often finds the EEOC process stressful due to the uncertainty of the potential outcome or litigation costs.
Once an EEOC Investigation has concluded, often the question is asked… “Will the EEOC sue on my behalf?”
The answer to this question depends on the results of the investigation.
If the EEOC does not have reasonable cause to believe that the complainant was discriminated against, the EEOC will issue a Notice of Right to Sue (EEOC Form 161-B) upon the complainants’ request.
Upon receipt of the Notice of Right to Sue, the complainant only has 90 days to file a suit in federal or state court.
Given the fact that the EEOC was unable to find reasonable cause to believe that discrimination occurred, it is strongly advised that the complainant seek advice from a trusted and experienced employment attorney who will be able to fully evaluate the evidence to determine if filing a lawsuit is in the complainants’ best interest.
If the EEOC is unable to proceed with your claim, the employee will be sent a Notice of Right to Sue (EEOC Form 161), which gives him or her permission to file a lawsuit in a court of law.
Possible reasons include:
One thing that all experts agree on is the need for employee’s to properly document all incidents of discrimination in a factual and concise manner. Taking proper notes at the time of the incident is essential in providing evidence that is credible and trustworthy which will help to fully demonstrate the details of the alleged discrimination.
Easily prove when you made a note with Forensic Notes.
If the EEOC has reasonable cause to believe that the complainant was discriminated against, the EEOC will attempt to reach a voluntary settlement with the employer through a process known as conciliation.
Conciliation allows both parties to negotiate a settlement and resolve the charge informally. The main advantage to conciliation is the fact that both parties will save on litigation costs, compared to if the charge was to proceed to court.
Where conciliation is not possible, the case will be referred to EEOC legal staff or in certain cases, the Department of Justice, who will then decide whether the EEOC should file a lawsuit on the employee’s behalf.
A Notice of Right to Sue will be issued to the employee if the EEOC decides not to sue on the employee’s behalf.
In this situation, a Notice of Right to Sue – Conciliation Failure (EEOC Form 161-A) will be sent to the employee.
The EEOC has limited resources and therefore only sues on the employee’s behalf after considering the level of discrimination, potential legal issues in the case or if it would have a positive outcome in changing the discrimination habits of other employers.
If an employee decides to proceed with a lawsuit, it is highly recommended that they seek the advice and guidance of an experienced employment lawyer.
Employment law is complex and an experienced lawyer will be able to advise you on the chances of a successful outcome given the employee’s particular situation.
If the EEOC decides to sue on the employee’s behalf, there goal is to “put the victim of discrimination in the same position (or nearly the same) that he or she would have been if the discrimination had never occurred”.
This is accomplished by various EEOC remedies including:
Victims of workplace harassment can also receive compensatory and punitive damages to cover:
Compensatory and punitive damages awarded are limited to the number of employees within the organization. Currently, the limit ranges from $50,000 to $300,000.
Age discrimination and sex discrimination cases involving wage discrimination are not able to receive compensatory and punitive damages. However, they may be entitled to Liquidated Damages which equals the amount of back pay awarded the victim.
Liquidated damages are a type of punitive damage awarded under the Age Discrimination in Employment Act (ADEA), Equal Pay Act (EPA) and the Fair Labor Standards Act (FLSA).
In order to file a lawsuit, a federal employee must complete the EEOC administrative complaint process as outlined in Steps 1 – 4 below.
There are a two exceptions to this requirement if the case involves:
A decision to bypass the EEOC administrative complaint process should not be taken lightly.
If an employee decides to bypass the process because the case involves one of the exceptions listed above, the employee must be aware of specific requirements and deadlines prior to filing a lawsuit as the filing of the lawsuit will stop any future EEOC investigation from occurring.
Once a federal employee starts the EEOC administrative complaint process, there are EEOC deadlines in place which help to ensure timely processing of the employee’s complaint.
If the EEOC exceeds the deadlines, the employee has the option to quit the process and file a lawsuit in court.
The most significant deadline is 180 days from the time the employee files the complaint.
If no decision or appeal has been made in the first 180 days, the employee then has the right to quit the process and pursue a lawsuit.
Quitting the EEOC administrative complaint process is a significant decision which should only be made after consultation with an employment lawyer.
For Federal employee’s or job applicants who believe that a federal agency has discriminated against them, they start the process of filing a complaint by calling the office responsible for the federal agency’s EEO complaints program to speak with an EEO Counselor.
Contact information for an EEO Counselor should be available within internal Federal employee websites. Contact information may include a telephone number and EEO office location.
The employee must contact the EEOC within 45 days of when the discrimination took place. The time limits may be extended for parties who were not notified or aware of the time limit.
An EEO counselor will provide information to the alleged victim of discrimination and explain how the Federal sector EEO process works, including time frames, resolutions and appeal procedures.
The EEO counselor will also advise the accuser in writing of their rights and responsibilities during the process.
The EEO counseling must be completed within 30 days of when the individual first contacted the EEOC office to request counseling.
Alternative Dispute Resolution (ADR)
At the counseling session, EEO counselors are obligated to let the employee know where an agency agrees to offer Alternative Dispute Resolution (ADR).
The employee may pick between participating in the Alternative Dispute Resolution (ADR) program or EEO counseling. If the employee picks ADR, then all counselling will end.
Alternative Dispute Resolution (ADR) also increases the timeframe of this step to 90 days.
If the matter is not resolved within 90 days, a Notice of Final Interview will be issued to the employee giving them the right to continue on with a formal complaint.
The next step for the employee is to file an EEOC complaint.
A complaint must be filed with the EEOC within 15 days of the receipt of the Notice of Final Interview.
The complaint must include:
When the EEOC Investigations is completed, the EEOC will issue a notice giving two choices:
EEOC Issues a Decision
If the complainant chooses to ask the EEOC to issue a decision and no discrimination is found, or if the complainant disagree with some part of the decision, he or she can appeal the EEOC decision or challenge it in federal district court.
Requesting A Hearing before an EEOC Administrative Judge (AJ)
An employee may ask for a hearing before an EEOC Administrative Judge (AJ) who will conduct the hearing, make a decision, and order relief if discrimination is found.
Once the EEOC receives the Administrative Judge’s decision, the EEOC will issue what is called a final order.
The final order states:
The final order will also contain:
The EEOC will have 40 days to issue the final order.
An employee may appeal the EEOC’s final order within 30 days of the EEOC’s final action or dismissal.
The decision on the appeal from the EEOC is the final action and if the appeal overturns the original final decision, the employee is eligible to take civil action against the employer.
Request for Reconsideration on the Appeal Decision
If the employee doesn’t agree with the EEOC’s decision on the appeal, they can request for a reconsideration of that decision.
A Request for Reconsideration is only granted if the employee is able to show that the decision is based on a mistake about the facts of the case or explain how the law applied to the facts.
It is highly recommended that employee’s planning to file a lawsuit in Federal Court do so with the assistance of an employment lawyer.
Common frequently asked questions (FAQs) regarding the Federal employee EEOC administrative complaint process can be found on the EEOC website.
There are Benefits and Risks (Pros/Cons) to filing an EEOC claim and the decision to file or not file should only be made after careful consideration.
The information provided to the EEOC is confidential and not shared with the employer until the charge is filed.
EEOC employees are legally required to keep all information confidential during the initial step as this step is in place to determine if the claim meets the minimum requirements for EEOC involvement.
However, once a charge has been filed, details of the claim must be provided to the employer to give them an opportunity to respond directly to the allegation.
For this reason, fear of retaliation in the workplace is often cited as a reason not to file a charge. As a result, the EEOC takes retaliation claims seriously and will investigate claims of workplace retaliation.
As the EEOC states, it is illegal to fire, demote, harass, or otherwise retaliate against a person that has:
Go to EEOC Retaliation in the Workplace section for further details and statistics.
Although laws exist against retaliation, this does not mean that the EEOC process is smooth, stress-free and doesn’t include the potential of retaliation.
After a discrimination charge has been filed, employee’s taking part in the filing may face the following challenges:
As a result, it is likely that the employee filing the charge will be questioned by co-workers during the EEOC investigative process with some employee’s either offering support while others siding with the employer.
As Mr. Darrel Keesee (Director Human Resources – ACS Group, Inc.) mentions in his article, employers that file with the EEOC have now made themselves “a threat and a target” within the organization. As a result, Mr. Keesee recommends that the case be well documented before filing with the EEOC and that the person making the claim come to the “Law Table with ‘clean hands’”.
Mr. Keesee goes on to state that “Larger corporations have separate legal divisions to investigate, mitigate damages, consider pre-emptive settlements and vigorously defend the company” so if the person filing the complaint has a “history of problems and disciplinary actions”, the company will likely use this against the employee during the EEOC process or litigation.
The actions of the employer listed above can greatly reduce the chances of a successful outcome for the employee. At the very least, this will increase the stress and anxiety associated with filing the charge.
An employee also has to consider the legal costs in hiring an employment lawyer. The reality is that a good lawyer (the one an employee wants to hire) is paid well and charges for every hour they work.
In some situations, a lawyer may agree to only be compensated if they win the case but this is normally only offered in situations where the evidence of discrimination is well documented and evidence clearly shows that discrimination occurred.
Although employment lawyers can be expensive, consulting with a lawyer is one of the best decisions an employee can make as it can save both time and effort which will reduce the stress associated with filing a charge.
Involvement of an employment lawyer can also lead to a faster settlement that is satisfactory for both employee and employer.
The limits on compensatory and punitive damages range from $50,000 to $300,000 depending on the number of employee’s that work for the employer.
If you decide to sue at the state level, compensation can be significantly higher especially if you take part in a class-action lawsuit against a large corporation. However, each state has different anti-discrimination laws that they enforce (or don’t enforce) and compensation limits vary from state to state.
As the non-profit Workplace Fairness Organization points out, the “purpose of a damages award is generally to put the individual back into the same place they would have been had they not lost their job”.
Anti-discrimination and employment laws are extremely complex and it is highly recommended that an employee seek legal advice if they are considering a lawsuit outside of the EEOC.
When deciding to file a claim with the EEOC or sue within a court of law, an employee must also consider the potential negative consequences of this action on future job opportunities.
Although anti-discrimination and retaliation laws exist, this does not stop future employers from “Googling” the employee’s name prior to any job offers.
Once an employee files a charge with the EEOC or takes part in a lawsuit, the employee’s name and details of the charge will potentially be made publicly available online.
The information found online by potential employers can have negative consequences for future job offers. This is why it is so important to properly document all incidents of harassment in a way that can be trusted within the courts.
Being able to confidently present evidence without the ability of the opposing party to question the validity of the notes is essential in providing a credible and believable testimony to Human Resource departments, EEOC or within a court of law.
A credible testimony helps ensure that no matter the outcome of the court decision, the written decision of the judge will show that the employee was credible and honest. As a result, even if a potential employer did search online for the results of the case, they would discover that the lawsuit was filed for legitimate reasons by an honest and credible future employee.
Filing a discrimination claim does not always result in a traditional investigation or litigation process despite what people might assume.
There is something called the EEOC mediation process. For federal employees, mediation is offered as an Alternative Dispute Resolution (ADR) that was introduced back in the 1990s.
EEOC mediation cases are an informal process that relies on an unbiased third party to assist in bringing the opposing sides together in hopes of facilitating a mutually agreeable resolution.
Both sides must voluntarily agree to negotiate the resolution that pertains to the discrimination charge. It is one of the many aspects of the EEOC’s mandate.
The mediation process reduces the time it takes to process the overwhelming number of claims related to workplace discrimination each year. It also allows the EEOC to expend fewer amounts of taxpayer dollars. Furthermore, the EEOC mediation program offers the opportunity to openly discuss the charges and issues involved in the discrimination claim.
The hope is to eradicate the misunderstandings that led to this, identify the primary concerns and interests of both involved parties and to understand the areas of agreement or common ground.
That last piece is important to identify in order to incorporate those areas of agreement into workable solutions. However, the chosen mediator does not exactly render a decision the way a judge would.
Contrary to popular belief, these EEOC mediation outcomes are centred around on the mediators helping both sides find a mutually acceptable resolution.
Since the mediation program was established by the EEOC, it has been very successful in resolving charges surrounding all the different types of workplace discrimination.
Over the years, independent researchers have conducted surveys to delve into the effectiveness of the EEOC mediation program which first launched in 1991. There have been various updates and additions implemented over the following ten years to ensure the program was meeting its full potential.
One particular survey interviewed parties on both sides of the mediation process. They found satisfaction among an overwhelming majority, and that 96% of employers and 91% of those filing the charges would be willing to utilize the mediation process again if given the opportunity.
From 1999 (the year the ADR mediation was fully implemented) to 2010, there were 136,000 mediations conducted.
During that time, more than 94,000 cases were successfully resolved, which equates to over 70 percent of the time.
There is little downside to seeking a remedy via the EEOC mediation settlement process.
If the case is not resolved during mediation, then the investigation will go forward as it would have if you did not try to obtain EEOC mediation results.
The experienced EEOC mediator will give the complainant and the employer a chance to hash out the strengths and weaknesses of both sides of the case.
This should provide a pretty clear picture of how much the employer values the case coupled with a chance to tell the employer how you think you will fare during a trial.
This can be a strategic way to try and ascertain a higher settlement for yourself. However, it is highly unlikely that you would be awarded the same amount that you might be awarded at a trial.
A big reason for that is the trade off of not having to spend money on expensive lawyers and spend years of your time in court.
In 2014, the EEOC paid out almost $94 Million.
View EEOC settlements for:
– Mediation Settlements
– Retaliation Settlements
– Disability Retaliation Settlements
– Discrimination Settlements
– Wrongful Termination Settlements
– Racial Discrimination Settlements
– Age Discrimination Settlements
The EEOC’s mediation program has been proven to save time and money, and also has the additional benefit of protecting the complainant from the very real possibility of losing at trial and essentially leaving with nothing due to a lack of evidence by the complainant.
Forensic Notes can help you increase your chances of success both during mediation or at trial by properly documenting your workplace harassment incidents before contacting the EEOC.
Highlight your credibility by using a system that follows Best Practice Guidelines for Recording and Documenting evidence for both civil and criminal court.
The EEOC hearing process requires a person who believes he or she has been the target of workplace discrimination.
An EEOC member meets with the employee to discuss the short form charge which sets out which statute was violated, under what circumstance and of course when it took place.
At that point, if EEOC involvement is deemed necessary then a more in-depth statement is put together. The information is then forwarded to the EEOC mediation department and the employer of the party filing the claim.
Workplace discrimination refers to unfair or unequal treatment of a person on the basis of one the grounds prohibited under the law. The prohibited grounds include race, color, religion, sex, nationality, disability, and age.
Discrimination in the workplace can be overt, such as the use of racial slurs or refusal to employ because of gender. It can also be subtle or concealed such as the adoption of employment or promotion criteria which on the face of it is generally applicable to all, but in its implementation serves to exclude or give preference to a certain class or group of people.
The EEOC mediation program does have some cases that are not eligible for the process. This is due to the EEOC’s priority charge handling procedure (PCHP) which filters out discrimination claims that are unsupported or claims that are simply not appropriate for mediation.
The EEOC has intake officers working to determine EEOC classifications by grouping claims into different classes: C, B, A, and A1.
Some discrimination claims get labeled as “C” cases when they lack reasonable cause.
These claims become candidates for immediate dismissal. Plus, this classification will typically remove any chance of being eligible for the mediation program.
Some claims make their way into the “B” category when they seem to imply that discrimination took place, but additional investigation is required to make a determination.
This classification makes the claim qualified for the mediation program.
The claims classified in the “A” group indicate reasonable cause, are egregious or have unsettled legal issues.
In this instance, the claim is eligible for the mediation program. However, both parties have to request it or it has to be seen as necessary by the EEOC district director and the regional attorney.
Any claims that get categorized as “A1” are potentially ineligible for the mediation program.
The EEOC has the right to pursue litigation in these situations.
Additional EEOC Mediation Process Links
This helpful link put together by the Equal Employment Opportunity Commission helps explain the fundamentals pertaining to this mediation topic.
It establishes what mediation is, how it works and what the main advantages of the program are when utilized within appropriate parameters.
This process has a strong reputation for being fair and far more efficient than most trials could ever be.
If you are concerned about navigating the EEOC mediation process, this link provides some helpful tips to help you.
This list of (10+) ten plus bonus tips are suggestions to help you find the most effective individual approach needed to reach as satisfactory an outcome as possible.
The Equal Employment Opportunity Commission (EEOC)is a United States government agency that is responsible for investigating claims that pertain to any kind of discrimination when it comes to applying for a job, employee’s already working at a job and to protect employee’s against retaliation who have complained or filed a charge regarding discrimination.
The EEOC investigates a wide spectrum of workplace issues, including retaliation, but its fundamental purpose is to fairly and accurately assess a situation before rendering an unbiased finding.
When the agency determines that discrimination has taken place, the goal is to facilitate a settlement regarding the charge. In the cases where retaliation settlements or discrimination settlements cannot be reached with the EEOC, lawsuits can be filed.
Most people are cognizant that being subject to harassment and discrimination at your place of work is against the law. However, many of these same people are hesitant to file claims or speak up about inappropriate workplace behavior because they are unaware that the law also protects them against retaliation.
Workplace Retaliation occurs when an employer fires, demotes, harasses or otherwise “retaliates” against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination.
Federal law protects employees from such retaliation whether they are the ones who made the complaint – internally or externally – or they simply cooperated in EEOC investigations or served as witnesses in EEOC investigations or litigation.
Employees are still protected even if the claim turns out to be unfounded, provided they made the claim in good faith.
In reality, employers cannot legally punish their employees for making discrimination or harassment complaints.
They also cannot take punitive measure against an employee that cooperates or aids an investigation.
EEOC retaliation settlements can be sought in the event that a person is fired or demoted as a direct result of their involvement in bringing attention to discrimination in the work environment.
It can also include other employment actions that are deemed negative.
This includes, being denied a raise, denied a transfer to a better suited or more desirable position or being kept from obtaining helpful training or mentoring opportunities. The details of a case inevitably impact the direction of the EEOC retaliation settlement coupled with the EEOC settlement amounts for retaliation.
Retaliation is not always blatant which can make retaliation settlement amounts even more challenging for the EEOC to obtain.
Some of the subtler forms of retaliation can include an unexpected and unfair poor performance review, sudden micromanaging of your work or even abrupt exclusion from staff meetings scheduled to discuss a project you had been assigned to work on.
Dating back to 2008, retaliation has been the most common alleged form of discrimination in the federal sector.
From the fiscal year of 2009 to the fiscal year of 2013, the EEOC dealt with anywhere from 15,000 to just under 18,000 complaints filed.
In that time, the number of complaints that involved retaliation allegations ranged from 44 percent to upwards of 48 percent.
The percentage of findings of discrimination based on retaliation dipped as low as 34 percent in 2011, but was as high as 53 percent in 2010. More specifically, in 2010 the EEOC received 17,583 total complaints filed.
Of that caseload, 44 percent (about 7,736 cases) of those complaints involved complaints with a retaliation component.
In that same year, 53 percent of findings of discrimination were based on retaliation.
In 2013 the EEOC published its Strategic Enforcement Plan (SEP) which highlighted the increased focus on preventing and litigating retaliation claims.
This initiative was fueled by obtaining written comments and a public meeting looking for input on their SEP.
Retaliation was highlighted as one of the “big six” global priorities of the Equal Employment Opportunity Commission agenda. Recent settlements have proved that the EEOC has followed through on their intent to mitigate employee’s from being victimized by retaliation. There were some major lawsuit rulings that resulted in significant EEOC winnings that year.
The following cases supported the emphasized efforts to push back against retaliation against employee’s in the workplace. In one lawsuit involving disability discrimination retaliation $130,000 was awarded, in a sexual harassment retaliation case $85,000 was awarded and in another disability harassment retaliation case $77,500 was awarded in the lawsuit.
Furthermore, in January 2013 the EEOC won a $500,000 consent decree against Cognis Corporation which involved components of retaliation.
The amount of retaliation settlement rulings varies based on the specifics of the case and the severity of the discrimination and or retaliation. In the examples above, the average retaliation settlements come out to a whopping $198,125. However, a larger sample size would be more indicative of what retaliation settlements could potentially result in.
Arguably the most important take away from each one of those cases is the government’s clear message. It has vigorously pursued its delineated agenda to scrutinize and penalize employers who demonstrate actions that even hint that retaliation took place in the workplace.
It just so happens that in these cases the employers did in fact deny any wrongdoing, but the EEOC was able to prove retaliatory practices through full scale litigation.
It is in the best interest of employers to remain off the radar of the EEOC which takes all forms of discrimination in the workplace seriously.
In the mean time, if you are someone who feels they have been the target of both discrimination and retaliation, there are a multitude of steps you need to take to ensure justice is served.
Take the time to familiarize yourself with the law to know when it is appropriate to take your concerns to the Equal Employment Opportunity Commission or your state’s fair employment agency.
The more evidence you obtain and organize the higher likelihood that you will meet the burden of proof.
Using a court-ready software solution like Forensic Notes helps you to properly document and organize all aspects of your workplace harassment investigation before, during and after you make your claim.
This will depict a clearer picture of how a change in treatment was triggered after you participated in filing or cooperating in a discrimination issue.
If you believe that you have been fired for filing a charge with the EEOC, it is in your best interest to contact an employment retaliation lawyer who specializes in retaliation cases to ensure you have the best chance to get the justice you deserve.
Equal Employment Opportunity Commission (EEOC) – https://www.eeoc.gov/
The state of New York defines discrimination as expected, but it also provides a broader protection for disabled employee’s compared to the federal statute that has been established.
More specifically, the New York Division of Human Rights (DHR) makes it illegal for an employer to discriminate based on actual or perceived race, creed, color, age, national origin, citizenship status, gender (including sexual harassment), sexual orientation, gender identity and expression, disability, status as victim of domestic violence, arrest or conviction record, marital status and retaliation.
The city also defines disability more broadly than the federal law. Having said that, it is important to know what is defined as discrimination, but even more imperative to know how to navigate the protocol once you have been victimized in New York
If an employee feels they have been the target of discrimination they have two choices in NY:
1. File with the state administrative agency
2. File with the Equal Employment Opportunity Commission
The EEOC was initially established to investigate complaints about discrimination and such other workplace issues. New York City residents can just file a claim with the NYC Commission on Human Rights (CHR).
It is only necessary to file a claim with one agency, and to then establish that you want to cross file the claim with the other agencies.
If the workplace has fewer than 15 employees’, file with the CHR or the DHR; otherwise utilize the EEOC which enforces federal law at larger workplaces.
Filing with the CHR or DHR is not a requirement to pursue a discrimination claim in court, but without an employment attorney it is smart to see if a resolution can be reached without taking it to court. Furthermore, the claim must be filed within one year of the date of the alleged discrimination.
The EEOC Process allows 300 days for filing, but it is best to strike while the iron is hot and details are fresh in your mind.
Some employment lawyers will advise against using the CHR or DHR (unless your company is less than 15 employees or not covered by federal law) because it eliminates your chance to pursue the state claim in court.
Dismissal due to administrative convenience is the one exception to that rule.
No federal employment discrimination cases can be filed in New York courts without filing with the EEOC first and following the EEOC Complaint Procedure.
Contrary to federal law, New York State does not put a cap on the amount of damages (emotional pain and suffering) or the amount of punitive damages that can be awarded against the employer.
Employment attorney fees can also be recovered within a discrimination case in NY.
Most cases can be brought forward in state or federal court, but in some instances, a case filed in state court that is using federal law can potentially be handed off to federal court.
The EEOC would have to file a Dismissal and Notice of Rights document or a Notice of Right to Sue before the case can be officially filed based on a federal claim.
Find all the information you need about the EEOC district offices and additional locations of the EEOC below.
They will provide you with all the relevant information to get in touch with your local EEOC district office as well as provide you with access to helpful information related to discrimination claims in the workplace.
To find your local EEOC office and contact information including phone numbers, click on one of the EEOC locations below.
EEOC Atlanta Georgia
EEOC Birmingham Alabama
EEOC Baltimore (MD)
EEOC Charlotte (NC)
EEOC Chicago Illinois
EEOC Dallas – Texas (TX)
EEOC Denver – Colorado (CO)
EEOC Hawaii – Honolulu (HI)
EEOC Houston – Texas (TX)
EEOC Indianapolis Indiana (IN)
EEOC Los Angeles California (CA)
EEOC Miami Florida (FL)
EEOC Nashville (TN)
EEOC New Orleans (LA)
EEOC New York City (NY – NYC)