EEOC – 2020 Comprehensive Guide + Proven Tips [infographic & video]

EEOC Subpoena

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.

Voluntary EEOC Settlements

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.

Step 5: EEOC Investigation Completed – Now what?

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.

No Reasonable Cause Exists

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.

EEOC Unable to Proceed with Investigation

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:

• Claim not covered under statutes covered by the EEOC
• Less than 15 employees were found to work for the employer
• Filed beyond the deadlines set by the EEOC
• Unable to determine if a violation occurred
• EEOC has accepted the findings of a state of local fair employment practices agency (FEPA) that investigated the charge

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.

Reasonable Cause Exists

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

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.

Reasonable Cause Exists – On Your Own!

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.

Reasonable Cause Exists – EEOC Sues for the Employee!

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:

• Place the employee in the position they lost due to discrimination
• Back pay
• Benefits the employee would have received if no discrimination had taken place
• Stop any future discriminatory acts by the employer
• Recovery of legal fees
• Recovery of expert witness fees
• Recovery of court costs

Victims of workplace harassment can also receive compensatory and punitive damages to cover:

• New job search costs
• Medical expenses resulting from the discrimination
• Emotional harm as a result of the discrimination
• Punitive damages to further punish an employer who recklessly discriminated against an employee

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:

• Age Discrimination
• Gender-based Pay Discrimination

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.

Step 1: Contact an EEOC Counselor

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.

Step 2: EEO Counseling or Alternative Dispute Resolution (ADR)

EEO Counseling

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.

Step 3: Filing a Formal EEOC 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:

• Signed statement from the employee (or a hired employment lawyer)
• Personal information (such as telephone number and address)
• Detailed information that fully describes the act of discrimination

Step 4: EEOC Investigation

When the EEOC Investigations is completed, the EEOC will issue a notice giving two choices:

• Employee can ask the agency to issue a decision as to whether discrimination occurred
• Employee can request a hearing before an EEOC Administrative Judge

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:

• Whether the EEOC agrees with the Administrative Judge
• If the EEOC will grant any relief the judge ordered

The final order will also contain:

• Information about the complainant’s right to appeal to the EEOC, or
• Information to file a civil action in federal district court, and
• The deadline for filing both an appeal and a civil action

The EEOC will have 40 days to issue the final order.

EEOC Appeals

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.

Step 5: Filing a Lawsuit in Federal Court

It is highly recommended that employee’s planning to file a lawsuit in Federal Court do so with the assistance of an employment lawyer.

FAQ’s

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:

• Filed a charge of discrimination with the EEOC
• Complained to their employer or supervisor about discrimination
• Participated in another employee’s discrimination proceeding

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:

• Further interviews with EEOC
• Disruptions to witnesses who must take part in the EEOC investigation
• Disruptions to the employer who must provide documentation and responses to EEOC questions

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.

Future Job Opportunities

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.

EEOC Mediation Settlement Results

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.

EEOC Mediation Program – Not Eligible

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.

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.

Sources:

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.

Click here for a complete list of EEOC Field Offices as listed on eeoc.gov.