|Filing a Complaint with EEOC
|The U.S. Equal Employment Opportunity Commission (EEOC): Filing and
(Federal employment discrimination cases have a totally different process. EEOC does not get
involved with federal cases until toward the end of the federal EEO process. See Federal EEO
EEOC, eeoc.gov, handles employment discrimination issues based on race, age, disability, sex,
national origin, religion, ethnicity, ancestry, retaliation, etc. Issues it deals with are wide ranging: from
the "terms and conditions" of the employment (such as training, benefits, privileges, assignments,
locations of work, etc.) to issues involving termination, constructive discharge, forced resignation,
forced retirement, suspension, reprimand, warning, unequal pay, denied hire or promotion, and
investigated occurred within the last 300 days. A phone contact with EEOC staff usually does
not count as an act of filing. You want to submit in writing or fax your charge (or a summary of
your charge)--with your signature and date--to a EEOC local district or field office to stop the
tolling of the 300-day statute of limitation. If you hand-deliver your written charge, it is highly
advisable to ask it time-stamped and be copied for your record. Many cases are dismissed
as untimely due to lack of insufficient documentation of filing or first contact with EEOC. Click
here for a blank EEOC Charge form.
When contacting EEOC, make sure you get the staff's name and do not assume that what you
stated verbally would be recorded or transmitted to the next staff or memorialized in your case
file. Try to get everything (or important things) the staff says in writing. If not available in
writing, take a note yourself.
EEOC usually has a work sharing agreement with state and municipal agencies and may
hand over your case to such agencies to investigate your case. It usually accepts their finding
when they issue a determination on your case.
Do not assume that the government agencies (including EEOC) are on your side. They are
supposed to take a neutral position. But the practical reality is that they are so overloaded
with cases that charges are not received with sympathy and, in many cases, not investigated
properly or thoroughly. Sometimes you may feel that you are fighting the employer as well as
EEOC (or the sate and local agencies). Although an attorney or representative is not required,
it may be advisable to obtain one to handle EEOC or other equivalent agencies.
formalize your charge on its Charge form. Since the interview may be scheduled later (and if you
think you may miss the 300 day statute of limitation), it is advisable on your first contact with EEOC to
present or fax your own written statement (with dated signature), clearing stating "discrimination" and
identifying the issues and bases. It is important that in your written charge you cover all bases (race,
creed, sex, age, disability, retaliation, etc.) and issues (termination, forced resignation, constructive
discharge, suspension, unequal pay, or terms and conditions of the employment, harassment, etc.)
The statement, "I have been demoted," is not enough. Specific Issues and bases must be identified
and articulated: "...based on race, sex, or national origin."
You can amend your Charge at any time, after filing until issuance of determination, to revise your
allegations (if appropriate and timely) and/or to add new or continuing incidents of discrimination
(such as retaliatory act or continuing acts of harassment). You can also add new bases (race,
religion, sex, disability, perceived disability, retaliation, etc.).
In the EEOC intake department, the cases are triaged in terms of the following three categories: 1)
frivolous, untimely, or non-jurisdictional (low priority); 2) worth mediating with some investigation
(medium priority); 3) worth mediating with aggressive investigation (high priority). Most cases fall into
the second category.
Once EEOC receives a formal complaint of discrimination, it is required to serve it to the employer. It
may schedule a mediation conference before serving your allegation to the employer.
EEOC Mediation: EEOC will schedule a mediation conference to help reach a settlement, if the
employer is willing to mediate. You need to know what you can and want to ask at the mediation. Be
realistic but don't sell out too cheap either under pressure. Do not let the employer or its attorney
argue the case at the mediation conference. You are there to talk dollars and cents, not the case.
Feel free to walk out the mediation conference if the gap between your demand and the employer's
offer is too large. (But do not walk out of the meeting without knowing what the employer is willing to
offer, even if the offer is $500.00. Knowing what the employer is willing to offer is better than no
knowing at all.)
Note that the mediator is interested in reaching a settlement, no matter how strong (or weak) your
case is. For the mediator, a $100 dollar settlement is as good as a $1 million dollar settlement. It is
a case resolved, no matter how.
In general, an amicable settlement is better than winning the case. Be practical and realistic (How
much do you think the employer can and is willing to offer?). Your representative may help you with
how much and what kinds of things you can demand in the settlement discussion. There is no
standard amount for an amicable settlement. Every case is different. If your case is strong, you want
to demand to be made "whole" (If no discrimination had occurred, what would have been your
income, benefits, status, etc.).
You don't need to tell the mediator everything about your case-- unless doing so may exert pressure
on the employer to settle-- because nothing is recorded at the mediation meeting and nothing will be
passed on to the investigator later on.
EEOC Investigation: If the mediation fails, as do majority cases, your case will be passed on to the
investigator. At that time, the employer may be required, if not already, to submit a written response or
answer to your charge. The investigation may take anywhere between three months to a year or even
longer, depending on the type of cases and the work load of the field office.
What you need to do: Submit a succinct affidavit to detail your allegations or submit a statement of
facts or a chronology of facts. A statement with signed verification or declaration ("I declare under
penalty of perjury that the statements made here are true and correct to the best of my knowledge,
information, and belief") is deemed more credible than one without. Submit in writing a list of
witnesses and their contact information with a brief description as to what they can attest to or why
EEOC should contact them. (Don't say the list over the phone. Do everything in writing and send it to
the investigator, not to the mediator or to the intake staff.) Beware of what you say or write, as it may
be used against you or to undermine your allegation. You may obtain witness statements yourself, if
you can and if appropriate. Avoid verbose or length statements. You don't want to bore the
investigator or cause her to lose interest in your case.
Don't wait for EEOC to tell you to submit relevant evidence, affidavits, or witness statements. You can
submit them at any time until EEOC makes a determination or close your case.
With its determination letter EEOC will issue you the Right to Sue letter (see below), informing your
right to appeal at the federal district court. Without this letter, you cannot file a civil lawsuit. You need
an attorney to file at the court.
If you request EEOC in writing a Right to Sue letter, it will gladly issue you one and may suspend
investigation. When you file at the court, you need to inform EEOC so that EEOC can close your case.
The Right to Sue letter: EEOC will issue this letter when it decides that it will not investigate further or
when it issues a finding. You need this letter to file a civil lawsuit at the federal court. A written
request for a right to sue letter will prompt EEOC to (gladly) issue you one, as EEOC can close the
case based on its being file at the court.
In some cases the right to sue letter is issued early on in the investigation process (within three or
four months after filing) with a notice of dismissal of your case due to lack of evidence. The letter is
sent along with the employer's (or attorney drafted) written response to your charge informing you that
EEOC finds your case to be not very strong and therefore would not devote its resources to fully
investigate the case. The letter informs you that you have a right to go to court to take further action.
In the majority of cases the right to sue letter is issued toward the end of the investigation process
with a determination that there is not sufficient evidence to credit your allegation.
The best scenario one can expect from EEOC is to have it find a probable cause (to credit your
allegations of discrimination). If a probable cause is found, EEOC's own attorneys will file and argue
your case at the federal court on your behalf-- free of charge. This is the best scenario. However, in
many cases, EEOC can decide not to prosecute the employer and instead can issue a right to sue
letter, even after finding a probable cause, so that you can litigate.
Here is a notice by EEOC whereby it found a probable cause (to credit the allegations of
discrimination) and attempted to conciliate. When the conciliation failed, EEOC issued the
Complainant the right to sue letter without prosecuting the employer. See Conciliation Failure Notice
and Right to Sue letter.
Attorney Fee: To file at the court you need an attorney. Attorneys may charge anywhere between
$10,000 to $100,000 to take your case to court. Many employers (and their attorneys) know this and
may decide to fight the charge at EEOC or at other administrative agencies, betting that you may not
be able to afford the cost of litigation at the court.
On the other hand, the employer, too, would have to spend the equal or greater amount of legal fee to
defend itself. Some employers reach a settlement in order to avoid legal cost.
any errors or misrepresentation contained therein.