Overview of Federal Discrimination Law Part II

This is Part II in our series summarizing federal employment discrimination law as it applies to private employers (see Part I). Today we’re going to discuss what happens when an employee believes her employer has violated a federal discrimination law. What does the employee do? Where does she go? Ideally, employers should encourage open-door policies for employees who believe they have been mistreated or discriminated against. Employers should do their best to listen to their employees and fix any problems in a timely fashion. However, even with open-door policies in place, an employee will sometimes seek legal remedies for the alleged discrimination or harassment. Below is a general summary of the administrative process that an employee must go through before she may file a lawsuit against her employer for alleged violations of federal employment discrimination law. Again, this is a summary of what usually happens. This post is not meant to serve as legal advice for any particular entity or individual, nor does this post create an attorney-client relationship. If you have questions about how the law applies to your business or a specific situation, give us a call as we’d be happy to help (479-316-3760).

Overview of the EEOC Complaint & Investigative Process

When an employee or applicant (we’ll call either an “employee”) believes he has been discriminated against by his employer or potential employer, he must generally file a Charge of Discrimination (or “charge”) with the EEOC before filing a lawsuit against the employer. A charge does not mean that an employer has necessarily violated federal employment discrimination law. If the charge is timely filed, the EEOC will often offer to resolve the dispute between the employee and employer through mediation. Compared to litigation, mediation often saves employers time and money, but it is not always successful. If mediation is unsuccessful, the EEOC may choose to investigate the discrimination charge.

The purpose of an EEOC investigation is to determine if there is “reasonable cause” to believe discrimination has occurred. To that end, the EEOC will gather information from both the employee and employer during the investigation. The EEOC may ask the employer for “statements of position,” policies, personnel files, etc. In addition, the EEOC may visit the employer on-site and conduct interviews of employees.

The EEOC’s investigation is generally limited to fact-finding regarding the charge or charges brought by the charging employee. However, in some cases, if the investigation reveals evidence of systemic discrimination by the employer, the EEOC may expand its investigation of an individual charge to a much broader “systemic investigation” to find out whether an employer has a discriminatory policy or practice of discrimination against a protected class of persons. Sometimes, the EEOC won’t even wait until it formally begins an investigation of an individual charge before it expands to a systemic investigation of the employer’s practices.

Whether the EEOC conducts an individual or systemic investigation, if the EEOC determines through its investigation that there is “reasonable cause” to believe discrimination or other unlawful conduct has occurred, and if informal settlement and conciliation are unsuccessful, the EEOC may decide to sue the employer. If the EEOC decides not to sue, and in cases where the EEOC determines there is no “reasonable cause” in the first place, the EEOC will give the charging employee a “right to sue” letter allowing that employee to sue the employer within 90 days. If a court or jury determines an employer has violated employment discrimination law, the employer may have to pay compensatory damages, punitive damages, or other legal fees or expenses, and/or take other corrective actions, such as reinstating an employee or ending discriminatory practices.

References


This article focuses only on federal, not state or local, employment discrimination law as it applies to private employers. For information about the effect of federal discrimination law on other types of employers, see Coverage, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/employers/coverage_private.cfm. State employment discrimination law is often similar to its federal counterpart. An example of a difference between federal and state employment discrimination law is that some states protect classes of people that federal law does not (for example, some states protect employees from discrimination based on marital status).

Federal employment discrimination statutes providing employee protections include Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, the Equal Pay Act (EPA), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA). Laws Enforced by EEOC, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/laws/statutes/index.cfm.