By: Dunlap Bennett & Ludwig
The United States Equal Employment Opportunity Commission (“EEOC”) is the federal agency tasked with investigating, and if possible, resolving complaints of employment discrimination in the workplace. EEOC utilizes processes that are delineated by statute and regulations in undertaking and completing its mission to ascertain whether colorable discrimination has occurred and, if so, what steps should be taken to address such unlawful activity. Possessing an understanding of how an EEOC investigation works – how it is initiated, what information is needed, the potential outcomes at the end of an EEOC investigation, and the alternatives to lawsuits that may be available – is extremely helpful to those who seek to avail themselves of its assistance.
This article is designed to provide a broad overview of how an EEOC investigation is initiated and proceeds. It is also offered to demonstrate how an attorney who is familiar with this process is an invaluable asset as there are pitfalls that need to be avoided. More specific topic areas, such as defining the types of discrimination addressed by EEOC, are reserved for later contributions. Because the author’s experiences have been almost exclusively through the Oklahoma City Area Office for the EEOC, the descriptions of relevant activities are colored by that lens.
Areas of Investigation
EEOC’s investigative mandate covers complaints that arise under (1) the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.); (2) the Americans with Disabilities Act as Amended (“ADA”) (42 U.S.C. § 12101 et seq.); (3) the Age Discrimination in Employment Act of 1967 (29 U.S.C. §§ 621 to 634); (4) the Equal Pay Act of 1963 (29 U.S.C. § 206(d)); and the Genetic Information Nondiscrimination Act of 2008 (“GINA”) (Pub. L. 110-233, 122 Stat. 881). EEOC additionally addresses violations of the Pregnancy Discrimination Act of 1978 (“PDA”), which is an amendment to Title VII found at 42 U.S.C. § 2000e(k). Because the bulk of the complaints of discrimination are alleged under the first three categories (Title VII, ADA, and ADEA), this article will address matters that are common to them (the PDA is included among those factors that apply to Title VII).
Qualifications
In order for EEOC to take up a complaint of workplace discrimination, the Charging Party (“CP” – an aggrieved person bringing the complaint) must demonstrate at least four distinct qualifications. First, the CP must be an “employee” as defined under the applicable statute (or an applicant); [1] independent contractors are not covered by the anti-discrimination statutes. Second, the complained of employer must meet the definition of “employer” as set forth by the applicable statute; [2] for Title VII and the ADA, the employer must have at least 15 employees on the payroll for 20 calendar weeks during the current or preceding year, [3] and for the ADEA, the employee threshold is 20. [4] Finally, the CP must fall within one of the protected classes that are recognized by the applicable statute. Title VII affords protections on the bases of sex, race, national origin /ethnicity, and religion; the ADA covers those with qualifying disabilities; and the ADEA protects those who have reached the age of 40. Each of the categories listed here are general; more descriptive breakdowns of each category are fodder for more individualized and detailed submissions, as the law has evolved. For example, “sex” now appears to incorporate categories beyond mere “male” and “female,” and that area of law is substantially in flux. [5] Further, what qualifies as a “disability” under the ADA can be a fact-intensive analysis, especially since the amendments of 2008 that overruled specific Supreme Court opinions and expanded the universe of conditions covered under the ADA.
The EEOC Process
Initiating the EEOC Process
Commencing the process for bringing a complaint of employment discrimination before the EEOC begins with the initial consultation between the CP and the attorney. The author begins the vetting process with the first communication with the CP /potential client, which is usually a telephone call or an email. It is important to garner sufficient facts that will demonstrate that discrimination has appeared to have occurred, that the CP is a qualifying employee, and the employer falls under the coverage of the statute. Additionally, there is a time limit after which these matters cannot be filed with EEOC. In states with a parallel investigative or “FEPA” agency, in order to maintain the action, the initiating complaint must be filed within 300 days of the last relevant discriminatory event; in states without such parallel agencies, that time period is reduced to 180 days. [6]
The EEOC complaint process is activated by submitting a completed Uniform Intake Questionnaire to the applicable EEOC office (which is the Oklahoma City Area Office for the author). Since this standardized form does not provide for sufficient space to adequately describe the at-issue incident(s), it is advisable to attach supplemental sheets – an Addendum – that provides, in narrative form, a description of the event(s) that led to the complaint. Additionally, because EEOC investigators are not attorneys (and consequently do not possess an in-depth comprehension of what is needed should the matter move to litigation), the author also drafts the Charge of Discrimination, which is the official instrument or document that sets forth the CP’s allegations of discrimination. Failure to adequately cover or describe the acts of discrimination by the employer in the Charge of Discrimination can prove fatal to the Charging Party bringing successful causes of action forward in a lawsuit, in that such can be deemed as a “failure to exhaust” administrative remedies before the EEOC; in essence, the defending employer can convince the court in which a lawsuit is filed that the CP did not provide sufficient facts to put the employer on notice of one or more claims alleged in complaint commencing the lawsuit. This is one juncture in which a well-trained attorney can be the difference between success and failure should the matter eventually move from the EEOC to litigation. This is also a primary reason why the author will generally decline to take a matter in which the CP has obtained the “Right to Sue Letter” without the assistance of counsel, particularly when the CP presents the “Right to Sue Letter” with mere days remaining of the 90-day limitations period for filing suit (to be further developed below). Finally, despite the fact that the Intake Questionnaire provides for the identification of the attorney /firm that is representing the Charging Party in the matter, a cover letter providing a brief outline of the Charging Party’s allegations, along with a notice of representation that includes the attorney’s /firm’s contact information, is strongly recommended.
These documents are then submitted to the local area EEOC office; this can be done via regular mail or electronically, either via facsimile or the EEOC portal (which went online in 2017).
The EEOC Process
Once the Intake Questionnaire and the executed Charge of Discrimination are received at the local EEOC area office, the EEOC administrative process begins. First, assuming that the intake documents included an executed Charge of Discrimination, the employer must be notified within 10 days of EEOC receiving the Charge that such has been filed with the EEOC. [7] The employer will be given a “litigation hold” notice regarding documentary evidence and will also be given an invitation to provide a Position Statement in which the employer explains the matter and rebuts the CP’s allegations of discrimination. EEOC will also refer the matter to its Alternative Dispute Resolution personnel, who will inquire whether the employer (i.e., the “Responding Party” or “RP) is interested in engaging in mediation that the EEOC provides free of charge; the mediators are full-time employees of EEOC assigned to conduct mediations. If the employer indicates a willingness to mediate, then – and only then – will EEOC offer the same to the CP. Should the employer decline the invitation to mediate, the matter is referred to Investigation without communicating with the CP regarding mediation; logically, if the employer does not wish to engage in a purely voluntary engagement, there is no need to inquire with the CP. Should a mediation be set and is successful (the parties agree to a settlement), the Charge is dismissed by the CP subsequent to all relevant exchanges being made. If the mediation does not result in a settlement, the matter is sent back to Investigation.
Once the matter is at Investigation, it may be some time before the CP hears from EEOC. As courts have acknowledged, it is not unknown for a matter to be with EEOC for two to three years before EEOC closes out the case. [8] Accordingly, if a substantial amount of time passes without hearing from EEOC, the author will make contact with the assigned Investigator to request a status update. For matters submitted to EEOC under either Title VII or the ADA, EEOC has exclusive jurisdiction over the matter for 180 days, after which the CP can request that a “Dismissal and Notice of Rights,” aka “Right to Sue Letter” (“RTS”), be issued irrespective of the fact that EEOC has not completed its investigation; [9] for matters submitted under the ADEA, that time limitation is reduced to 60 days. [10] In more distantly past years, the author had often found it beneficial to allow the matter to remain at EEOC as some matters resulted in Conciliation (see below). However, that result has been much less frequently provided in the last 4-5 years, perhaps due to the loss of very experienced investigators at the OKC Area Office through retirement and transfer.
An EEOC investigation generally results in three distinct outcomes. The outcome the author has encountered in the vast majority of cases submitted to EEOC is the “standard issue” (the author’s term) RTS. With this result, EEOC checks the box that asserts that EEOC makes no determination whether discrimination has occurred; this is issued without any precursor documents chronicling EEOC’s findings. In the roughly 11 years that the author has litigated employment discrimination matters, these cases, more often than not, resulted in the filing of a lawsuit, depending upon the author’s evaluation of the strength of the CP’s allegations.
The second result is the worst of the three and is usually preceded by a “Pre-Determination Letter” (“PDL”), a document in which EEOC outlines its assessment that discrimination cannot be proved. The CP is provided 20 days to file a response /rebuttal to this document; however, this rarely changes EEOC’s perspective about the matter. EEOC will then issue a RTS that appears similar in substance to the “standard issue” one described above. However, due to the PDL preceding it, more often than not, the author will provide the RTS to the CP /client and advise that the firm will not pursue the matter further (in court); the possibility of this outcome is addressed in the initial consultation meeting. [11]
Finally, the outcome that is provided least frequently is the “Letter of Determination” (“LOD”), which is issued when EEOC determines there is “reasonable cause” to believe that the CP did, in fact, encounter unlawful discrimination in the workplace. When this occurs, the parties are invited to “Conciliation,” a setting in which the assigned Investigator negotiates on behalf of the CP with the employer (in coordination with the attorney retained by the CP). It is axiomatic that employers are generally (but not universally) willing to resolve the matter at this juncture; failure to do so results in a RTS issued that is labeled with the words “Conciliation Failure,” and further, states that EEOC has found “reasonable cause to believe” that actionable discrimination was perpetrated by the employer. If the matter is resolved at Conciliation, a “Conciliation Agreement” is executed among the CP, the employer and EEOC (who is a party to this Agreement). In addition to a cash settlement for the CP, the Conciliation Agreement also imposes certain terms and conditions upon the employer for a specific time period (usually two years) subject to EEOC oversight; should the employer fail to fulfill those conditions, EEOC reserves the right to resort to judicial intervention to enforce those provisions.
Termination of Case /Dismissal and Notice of Rights
Ultimately, EEOC will end its involvement with the matter, either by facilitating a settlement via mediation or Conciliation, or issuing the “Right to Sue Letter” if the matter does not resolve by agreement between the parties. Once the RTS is issued, the CP has 90 days from the receipt of the RTS to file a lawsuit or forever lose the right to pursue the claims in court. [12] At this juncture, the attorney /firm must quickly decide whether to extend the representation into litigation or advise the CP /client that the attorney /firm is opting to end the relationship, especially if the matter is taken on a contingency fee basis. Accordingly, the possibility that the attorney /firm will not pursue the matter past the EEOC dismissal should be explained to the CP /client at the initial consultation. Understanding the EEOC process and its potential outcomes will provide substantial assistance in informing the CP /client at the outset of possible outcomes, which helps to keep expectations in a realistic arena.
Conclusion
The foregoing provides a functional overview of what occurs when a complaint of employment discrimination is presented to EEOC. Hopefully, this article will enlighten the attorney who is unfamiliar with the process, as well as the individual who seeks to file a Charge of Discrimination, regarding how the process works, its potential means of resolution, its outcomes, and potential issues that can derail a claim. An attorney well-versed in the process can be of substantial assistance to a person who has colorable employment discrimination claims.
End Notes:
[1] 42 U.S.C § 2000e(f) (Title VII); 42 U.S.C § 12111(4) (ADA); 29 U.S.C § 630(f) (ADEA).
[2] 42 U.S.C § 2000e(b) (Title VII); 42 U.S.C § 12111(5) (ADA); 29 U.S.C § 630(b) (ADEA).
[3] See definitions under note 2.
[4] See definition under note 2.
[5] See Bostock v. Clayton County, 140 S. Ct. 1731, 207 L.Ed.2d 218 (2020).
[6] See https://www.eeoc.gov/time-limits-filing-charge (last visited June 29, 2021).
[7] See, e.g., 29 C.F.R. § 1601.14(a).
[8] See EEOC v. W.H. Braum, 347 F.3d 1192, 1198 (10th Cir. 2003).
[9] 29 C.F.R. § 1601.28(a)(1).
[10] 29 C.F.R. § 1626.18(b).
[11] The overwhelming number of EEOC related cases processed by the author have been on a contingency fee basis. Consequently, an accurate (as possible) evaluation of the merits of the claims is imperative, and this evaluation is a continuing process, one that begins with the initial contact with the potential client /CP. Thus, while the author has successfully litigated cases EEOC found to lack evidence of colorable discrimination, an EEOC finding that discrimination did not occur militates against committing further resources in litigation that will much more expensive, in terms of time and expenditures, than the limited efforts required while the matter is at EEOC. This is precisely why resolution at EEOC, via mediation or (preferably) Conciliation redounds quite favorably to the client and the firm, as far fewer resources are committed to obtaining a desirable outcome. This accelerates the CP /client obtaining positive relief (and that in a less confrontational setting than litigation); it also maximizes the remuneration obtained by the attorney /firm, especially when calculated on an hourly basis.
[12] See U.S.C § 2000e-5(f)(1) and 29 C.F.R. § 1601.28.
There are myriad authorities regarding when “receipt” occurs and initiates the 90-day time period. See, e.g., Witt v. Roadway Express, 136 F.3d 1424, 1429 (10th Cir. 1998). That topic is too involved for appropriate coverage in this article; cases have been preserved and fallen over this specific issue.
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