By: Abigail Britton
Regardless of industry, there is one thing common to most small businesses: they hire, train, and supervise employees. Employees help business owners manage the daily operations and serve clients. While having employees can help spread out the work that a business does, there are several things to consider from a legal perspective. One of those considerations is anti-discrimination laws such as Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), and Genetic Information Nondiscrimination Act (GINA). These laws protect against discrimination based on race, color, religion, sex (including sexual orientation and gender identity), national origin, age, disability, and medical history. The laws are enforced by a federal agency called the Equal Employment Opportunity Commission (“EEOC”).
When an employee believes that they have been discriminated against because of the protected statuses listed above, their first option for relief will be to file a claim with the EEOC or with a state enforcement agency, if the state in which they are located has such an agency. In fact, employees are required to exhaust these administrative remedies before they can sue their employer in a civil lawsuit. Private employees can initiate this process with the EEOC and then the EEOC has at least 180 days to complete the investigation process or issue a right to sue letter (though it may issue the letter before that).
Most small employers are unfamiliar with what the EEOC process is like and what to expect because they have not already been through the process. This blog post was created to help employers understand what this process entails and how to navigate this new territory.
Step One: Filing the Claim
As stated above, private employees are required to file a complaint with the EEOC in order to receive a right to sue letter. The employee must bring the claim within 180 calendar days, or 300 calendar days if there is a state agency that also prohibits employment discrimination. An employee can file this claim online, in person at an EEOC office, or by mail. After filing this claim, a notice of the charge is sent to the employer within 10 days if the charge is timely filed and concerns activity that is protected under the laws that the EEOC enforces. This notice lets the employer know that a charge has been filed.
Employers need to be particularly cautious after they have been made aware that the employee has filed a charge with the EEOC. There are provisions in the laws the EEOC enforces that protect the employee from being retaliated against because they have filed a claim or assisted with the job discrimination investigation.
Step Two: Mediation v. Investigation
Once the employer has been notified of the charge, the EEOC will check to see if the employer and employee would like to agree to mediate the claim in hopes that both parties can reach a settlement. Mediation is an alternative to litigation which can be less formal and involves a neutral, third-party mediator. The EEOC encourages employers to utilize mediation because it is “free, quick, voluntary and confidential.” If mediation is selected and results in a successful settlement, there is no need for the EEOC to investigate. The average time to process the mediation is 84 days. Mediation typically results in settlement. Settlement can be pursued at any time during the filing process.
If the parties do not agree to mediation, or the mediation does not resolve the conflict, the investigation process will begin. The employer will be required to provide a written answer to the employee’s charge. The employee receives a copy of this form. They can then respond to the employer’s response within 20 days.
The EEOC will then begin its investigation. What the investigation entails depends on the facts of the charge and the kinds of information that they need to make a decision. Some common methods of fact collecting include interviews of the employer and its employees, document review, and interviews of witnesses. The investigation length depends on the circumstances of the charge. The average length of the investigation is 10 months. Mediation usually produces a result within 3 months, which is why it is advantageous to some employers to opt for mediation versus pursuing an investigation.
Step Three: Amending the Charge
Employees have the option of adding additional events of discrimination to their charge during the investigation process, otherwise known as “amending” the charge. These additional charges are also subject to the timelines stated above. The EEOC will add these events to the charge and may request additional information from the employer in order to adequately investigate the new charges.
Step Four: Determination of the Charge
At the end of the investigation, the agency will provide the employee with the investigative file and alert them to their right to request an administrative hearing or an immediate final decision. If the employee requests an immediate final decision, they will receive one within 60 days. If a hearing is requested, the case will be assigned to an EEOC Administrative Law Judge who will conduct a hearing. The employee can also appeal the agency’s decision, which can continue the complaint process.
Conclusion and Additional Resources
As you can see, the process for filing, investigating, and hearing an employment discrimination complaint can be lengthy, time-consuming, and complicated. Employers who find themselves faced with an EEOC charge should consider many things, such as submitting to mediation to prevent a time-consuming investigation, whether or not to seek legal advice and hire an attorney, and setting up processes and procedures to help prevent potential discrimination from occurring again within their organization. This process can be complicated and lengthy and employers should take steps to be prepared to defend against these claims in the future.
For additional information and resources for small businesses navigating an EEOC claim, see the EEOC’s Small Business Resource Center at https://www.eeoc.gov/employers/small-business.
This post has been reproduced with the author’s permission. It was originally authored on February 7, 2022, and can be found here.
Abbie Britton, at the time of this post, is a second-year law student at Penn State Dickinson Law. She is a former graduate of York College of Pennsylvania, with a degree in Business Administration and a focus on Human Resource Management. She plans to pursue a career in Employment Law after obtaining her law degree.
Sources:
https://www.eeoc.gov/how-file-charge-employment-discrimination
https://www.eeoc.gov/what-you-can-expect-after-you-file-charge
https://www.eeoc.gov/employers/resolving-charge
https://www.eeoc.gov/employees
https://www.eeoc.gov/employers/small-business
https://www.eeoc.gov/federal-sector/formal-complaint-investigation-process
Image Sources:
https://www.flickr.com/photos/141290938@N03/26682691294
https://www.amazon.com/Ultimate-Wall-Clock-Battery-Operated/dp/B07HVN4BVQ
https://www.skipprichard.com/3-keys-to-negotiating-success/
