OVERVIEW OF EEOC CHARGE PROCESSING

Transcription

1 OVERVIEW OF EEOC CHARGE PROCESSING CHARGE FILING AND NOTIFICATION OF RESPONDENTS A person who believes that he or she has been discriminated against in employment because of race, color, sex, national origin, religion, age, disability, or retaliation may file a charge of discrimination ( charge ) with the EEOC. The person who files a charge is referred to as the charging party (CP) and the party against whom the charge is made is referred to as the respondent. EEOC intake staff interviews the CP, makes an initial assessment of the merits of the CP s allegations, and provides counseling. The CP then decides whether to file a charge. Based on the discrimination alleged, a CP may decide to file under more than one law. For example, a person alleging sex-based wage discrimination may file under Title VII and the EPA, which prohibit wage discrimination based on sex but have different remedies. A person alleging discrimination based on national origin and age would file under Title VII and the ADEA. Charges usually are handled by the EEOC office with geographical jurisdiction over the place where the CP worked or applied for work, or where the respondent s facility involved in the alleged discrimination is located. A respondent cannot object to a charge on the grounds that it is filed in the wrong office. The respondent is promptly notified of the charge, as is the state or local agency, if any, that handles the same basis of discrimination alleged. If the charge appears to be filed beyond the legal time limits set by law (180/300 days), a respondent may still have to reply on the merits if EEOC believes that there are circumstances that extend the timeliness requirements, as when the employer has affirmatively misled the employee with respect to his/her timeliness requirements under Title VII (equitable estoppel). L - 1

2 Under the EEOC's Priority Charge Handling Procedures, EEOC assesses charges closely at intake and then prioritizes them. Non-meritorious charges are closed quickly. Charges that indicate possible merit are usually referred for mediation and, if mediation is declined or fails, receive a thorough, in-depth investigation. MEDIATION Once the charge intake process is completed, EEOC usually invites the respondent and the CP to participate in mediation of the charge. Mediation is free, voluntary, and confidential, and provides an early opportunity to resolve charges before time is expended on investigation, and while the positions of the parties to the charge may be most amenable to an amicable resolution. Respondents and CPs have found mediation particularly useful in preserving relationships when the CP is still currently employed with the respondent. In any case in which the parties to a charge voluntarily agree to mediation, a neutral mediator attempts to resolve the charge. All information obtained in such efforts is kept in strict confidence. If mediation fails, the information is kept in a separate file and may not be disclosed to investigative staff. A full discussion of the EEOC's mediation program is covered in Section O of this volume. INVESTIGATIONS There is no maximum time within which EEOC must complete its investigation of a charge. No two EEOC investigations are necessarily alike. Various methods are available to EEOC investigators in resolving charges, including any combination of the methods discussed below (no one of these investigative methods is used to the exclusion of the others). When EEOC sends the respondent a copy of the charge, the respondent may be asked to provide a statement of position. A letter can serve the purpose of a position statement; however, EEOC prefers that the respondent also submit supporting documentation. L - 2

3 Many investigations begin with a written request for information (RFI) that asks the respondent to answer a number of questions or provide selected information related to the charge. (Respondents may get an extension for submitting a position statement or response to an RFI by calling the assigned investigator or supervisor and providing good justification.) An investigation also may be conducted at the respondent s facility ( on-site ), involving a tour of the facility, inspection and copying of records (personnel files, etc.), and interview of witnesses. EEOC can issue a subpoena to gain access to facilities, to obtain testimony or to gain documents, or to compel the respondent to cooperate in an investigation. When an employer knowingly destroys records in anticipation of a charge or in other respects attempts to defeat EEOC enforcement efforts, EEOC may draw an adverse inference as to evidence sought. EEOC may also file court actions to enforce subpoena compliance and to obtain temporary restraining orders. When the investigation is complete, if reasonable cause is found that discrimination has occurred, the respondent is informed of the facts and evidence leading to the findings. WITHDRAWAL, DISMISSAL OR OTHER CLOSURE OF CHARGES Generally, EEOC will close charges that are withdrawn, that are dismissed, or when the CP files suit (ADEA/EPA) or asks for a right to sue letter (Title VII/ADA). When EEOC completes an investigation and finds no jurisdiction or no violation, or has similar reasons to cease processing, EEOC will send the CP and respondent a notice of dismissal that also explains the CP s right to go to court. CPs may review their charge files during the period when they have a right to sue and respondents can review the file after the CP has filed suit. However, under federal disclosure law, EEOC may withhold some documents to protect personal L - 3

4 privacy or the identity of a confidential source, or if the document contains or discloses EEOC s internal processes, deliberations or work product. PRE-DETERMINATION SETTLEMENT If the parties are agreeable, charges may be resolved by a pre-determination settlement while the charge is still in investigation. The charge is resolved by written agreement in which the respondent does not admit liability and in which EEOC and the CP agree that the settlement, when finalized, bars any further action on the charge. POST-DETERMINATION RESOLUTION When an investigation has been conducted and EEOC finds reasonable cause to believe discrimination has occurred, EEOC will attempt conciliation between the parties. Similar to pre-determination settlements, conciliation agreements between EEOC, the CP and the respondent are in writing and provide for correction of practices, relief for aggrieved persons, and provisions for enforcement in the event of a breach of agreement. LAWSUITS If conciliation fails, EEOC may file a lawsuit. (However, under Title VII and ADA, the Department of Justice has jurisdiction to file lawsuits against state or local government agencies). If EEOC (or Justice) decides not to sue, it will give the CP notice of the right to sue and explain the time period within which suit must be brought. Under Title VII and the ADA, an aggrieved person must sue within 90 days of obtaining a notice of right to sue. Under ADEA, aggrieved persons may file suit at any time 60 days after filing a charge but not later than 90 days after EEOC has L - 4

5 given notice that it has completed action on the charge. Persons may sue under the EPA at any time within the two-year statute of limitations (three years for willful violations) without first filing with EEOC. Filing an EPA charge does not extend the time period for filing a lawsuit. The EEOC s public enforcement role has been reaffirmed. In EEOC v. Waffle House, Inc., 534 US 279 (2002), the Court held that the EEOC is not constrained by a private arbitration agreement to which the EEOC is not a party. An agreement between an employer and an employee to arbitrate employment related disputes does not bar the EEOC from pursuing victim-specific judicial relief, such as backpay, reinstatement, and damages in an enforcement action. FEDERAL INTER-AGENCY COORDINATION Many other federal agencies have responsibility for enforcement of statutes, regulations or executive orders that prohibit discrimination and promote EEO on matters that are also covered by or related to the statutes enforced by EEOC. The Department of Justice and the Office of Federal Contract Compliance Programs in the Department of Labor are the two main agencies that have enforcement responsibilities requiring coordination with EEOC. Others include the Federal Communications Commission and the Department of Health and Human Services. Where the enforcement activities of EEOC and other federal agencies overlap, EEOC enters into coordination arrangements to avoid duplication in processing complaints and to preserve complainants rights under both agencies' provisions. The timeliness of a charge is measured by the date filed with the first agency that receives it, even if it is later transferred to the other agency for handling. The employer also benefits from these arrangements because usually only one agency investigates a given complaint even if both agencies provisions apply. An employer who may experience such a joint complaint or a dual-filed complaint is encouraged to cooperate with the investigating agency, as the disposition by that agency is ordinarily accepted by the other agency. L - 5