Overview of the Equal Employment Opportunity Commission and the Processing of a Charge of Discrimination

Transcription

1 Overview of the Equal Employment Opportunity Commission and the Processing of a Charge of Discrimination ILLINOIS MUNICIPAL LEAGUE MUNICIPAL ATTORNEYS SEMINAR March 19, 2010 DoubleTree Hotel 10 Brickyard Drive Bloomington, Illinois (309)

2 EQUAL EMPLOYMENT OPPPORTUNITY COMMISSION ( EEOC ) Federal anti-discrimination laws are enforced by the federal EEOC against employers with a certain statutory minimum of employees. Examples of statutory minimums are: Title VII of the Civil Rights Act of 1964 applies to employers with fifteen (15) or more employees. The Age Discrimination in Employment Act of 1967 (ADEA) applies to employers with twenty (20) or more employees. Title I of the Americans with Disabilities Act of 1990 (ADA) applies to employers with fifteen (15) or more employees. The Equal Pay Act of 1963 (EPA) applies to most employers with one or more employees. When a state or local agency exists, such as the Illinois Department of Human Rights ( IDHR ), the EEOC may defer its processing of the charge to allow the state or local agency to handle the case. The EEOC is not bound by the results of the state or local agency investigation, but it must give strong weight to any findings. The EEOC has district offices throughout the United States which carry on most of the day-today enforcement activities of the EEOC. Each district office covers a specific geographic area, and most have satellite locations, known as area offices, that handle cases within a localized portion of the district. The district office is covering Illinois is located in Chicago. In order to preserve the complainants federal rights, the IDHR automatically cross-files eligible employment charges with the federal EEOC, and conducts the investigation for the EEOC under the terms of the agencies Worksharing Agreement. If a Right-to-Sue Notice is requested from the EEOC, the IDHR encourages the complainant to withdraw her case at IDHR. If a complaint with the same issues as those filed with the IDHR is filed in federal court and the complainant has not withdrawn, IDHR will suspend its investigation. If an employer receives a charge filed with a local agency or board, it should carefully review the local rules and procedures, since these rules will be applicable if the local agency investigates the charge. HOW A CHARGE OF DISCRIMINATION IS PROCESSED EEOC regulations and the IHRA require that charges be filed within 180 days of the alleged wrongful acts. (Note: Charges of conduct violating Title VII may also be filed initially with a state agency that enforces the state s own anti-discrimination laws as discussed above (a socalled deferral state ) such as Illinois. Instead, the charge under Title VII must be filed with the EEOC within 300 days after the allegedly unlawful employment practice, or 30 days after notice that the state agency has terminated its proceedings under state law, whichever is earlier). Where 2

3 the filing deadline on state claims is less than 300 days, employees still have 300 days to file their Title VII claims with the state agency. The EEOC has adopted a National Enforcement Plan for administrative enforcement, litigation and charge handling procedures. Each district office has also been given the authority to implement Local Enforcement Plans to tailor their priorities to the specific communities they serve. The National Enforcement Plan was deemed necessary because of the massive inventory of discrimination complaints and the possibility of further budget cuts. Without a method of prioritizing the workload, the number of complaints under investigation continued to climb, and the length of time necessary to process an individual discrimination complaint continue to grow. Therefore, it became necessary to discontinue full investigation of every complaint. The new plan focuses on three major approaches to eliminating discrimination in the workplace. 1. Prevention through education and outreach: Public education and technical assistance is to be conducted at the national and local level. These educational efforts are intended to result in recognition and prevention of discrimination in the first instance. 2. Voluntary resolution of disputes: With agreement from both sides, the EEOC will organize and implement the use of alternative dispute resolution. Third party mediators will be engaged to encourage pre-investigation resolution of discrimination complaints. If the employer operates an in-house ADR program (such as an internal grievance procedure), the EEOC may suspend its own investigation until the in-house procedures are exhausted. 3. Strong and fair enforcement: The EEOC had admitted that it cannot and should not pursue every discrimination complaint which it receives. Instead, the EEOC will prioritize complaints, and become involved in litigation of only a select number of complaints which it determines may have far-reaching implications. The following areas have been determined to have priority. Cases involving repeated and/or especially outrageous discrimination, such as harassment or employer policies which are clearly discriminatory on their face; Challenges to employment practices which affect may employees or applicants, such as patterns of discrimination in hiring, layoff, or pay; Cases which present unresolved questions on the development of the law, such as claims of national origin discrimination based on language restrictions, accommodation of religious practices, cases arising under the American with Disabilities Act, and claims involving two or more bases for discrimination; Cases involving claims or retaliation for cooperation with the EEOC or for opposing unlawful employment discrimination; Cases involving violations of recordkeeping requirements or challenging the subpoena or investigative powers of the EEOC; 3

4 Cases involving challenges to EEOC regulations or guidelines. The National Enforcement Plan basically sets up three types of discrimination complaints. POSSIBLE SANCTIONS Type A: The first type (Type A) will be cases in which discrimination is likely to be found, which have complaints of the type on the priority list, and which the EEOC is interested in taking to court. Those cases will be subjected to intense investigation by the EEOC in preparation for litigation. Type B: The second type (Type B) will be cases which will require employers to prepare position statements. The EEOC will pursue investigation, but may not take the case to trial if the information obtained does not lead to a likelihood of success, or if the subject of the complaint is not one of the significant issues on the priority list. In those cases, the EEOC is most likely to issue a right-to-sue letter to the employee with little or no investigation, and will before 180 days have passed, the statutory period of conciliation. Type C: Type C claims are those which, after a thorough intake interview by EEOC personnel, do not appear to indicate discrimination. Type C claims also include claims where the employer is not covered under applicable law. For instance, the employer does not have the required number of employees. Under the plan, the EEOC is likely to dismiss the Type C charges, but issue a no-cause right-to-sue letter. If the EEOC investigates a charge of discrimination and concludes that in its brief discrimination did occur at the workplace, it could demand that an employer implement remedial measures and/or post a workplace notice of the employer s agreement to comply with federal antidiscrimination laws. In addition, if an individual has complained, the EEOC is likely to negotiate for money damages on behalf of the person claiming to have suffered discrimination. REJECTING THE EEOC DECISION It is important to realize that the EEOC determination on a charge is not binding and an employer is free to reject an unfavorable determination, requiring the EEOC or the charging party to sue. However, litigation with the EEOC can prove to be costly from a monetary and public relations standpoint the employer is taking on the federal government which has a very large budget with numerous attorneys on staff, and it freely issues press releases regarding cases it is pursuing. Further, the employee may intervene into the EEOC suit, coming into the litigation with yet another attorney. Thus, employers should avoid this type of litigation if at all possible. Within 90 days of receipt of the Notice of Right to sue, employees have the individual right to file a lawsuit in which they are entitled to a trial by jury to recover damages, including back wages, compensatory, and punitive damages to punish the employer. 4

5 Compensatory and punitive damages are available, but there is a cap on how much a plaintiff can recover depending on the size of the employer. For example, the damage caps under Title VII are as follows: $50,000 if employer has up to 100 employees; $100,000 if employer has from 101 to 200 employees; $200,000 if employer has from 201 to 500 employees; and $300,000 if employer has over 500 employees. During a lawsuit, the issues raised by the plaintiff and the defenses raised by the employer will be considered by a jury or by the court, and although the EEOC s decision could be part of the evidence in the case, its decision is in no way binding in a court proceeding. DEALING WITH DISCRIMINATION CHARGES Because of the disruption and the potential financial liability to a business, employers must be extremely careful in responding to any complaints of employment discrimination. The following are suggestions for dealing with such complaints. Supervisors should document all personnel actions when they happen. An employer s documentation, prepared as part of its regular business operations, could prove invaluable in defending against any discrimination claim, but particularly against claims involving discipline, discharge, or layoff; The personnel officer or some other responsible official should review terminations and other significant personnel decisions before they are taken to make sure that they are defensible. It is also recommended that the employer consult a qualified employment attorney before terminating an employee. There should be evidence of a rule violation and a showing that the discipline is consistent with that taken under similar circumstances in the past; In discharge situations, the employer may wish to consider suspension pending a more detailed investigation depending on the circumstances involved. If the employer discovers there are issues surrounding the employee s employment and/or discipline, this could give the additional time necessary to review all circumstances and act in the best interests of the employer; When a charge of discrimination is received from the EEOC or similar agency, the employer should review all issues related to the charge immediately, collect and preserve documentation, and identify and interview witnesses; It is generally a good idea to review the charge and the employer s case with a qualified employment attorney to ensure the employer is aware of all potential issues and raise all available defenses. The response will be subject to legal scrutiny and may resurface in 5

6 later depositions or at trial in the event of litigation. The process is marked with potential pitfalls for unsuspecting and unrepresented employers; Designate an attorney or other official to represent the employer in their dealings with the EEOC or the state agency; Determine quickly if a clear defense, such as the timing, exists, and decide whether an immediate response raising this defense is appropriate. Also, determine whether the case arose under circumstances that would justify a rapid resolution before the formal investigation occurs; In responding to the investigation, limit the responses to the issues raised by the charge. Investigations should not be permitted into matters that are not related to the charge because the scope of any subsequent lawsuit is generally defined by the actual scope of the EEOC s investigation. Submit to the EEOC a definitive statement of the employer s position and the documentation requested. A position statement should identify all factual errors or omissions made by the employee that was the subject of the alleged discriminatory action. It should clearly explain the reasons for what happened. A well-drafted statement may also include a summary of evidence which supports the employer s reasons for its actions; The EEOC has limited its use of fact-finding conferences in recent years. However, if a fact-finding conference is requested, consider whether cooperation in the proceeding is in the employer s best interests. If the employer does participate in such a conference, be prepared to address all issues raised by the charge. It is possible that the employee will be represented by an attorney and that the employer s witnesses will be questioned by the EEOC representative so they should seriously consider representation by a qualified employment attorney during the conference. In any case, your witnesses should be thoroughly prepared for possible questioning; If the EEOC issues an unfavorable decision, the employer should evaluate the case and determine their position on settlement. Any settlement negotiated with the EEOC should include at lease a complete release of employer liability as to the charge and a clause stating that the settlement agreement is not intended to be an admission by the employer of any violation of law. * * * If you have questions or would like to discuss the implications of this report further, please feel free to contact Ronald L. Wisniewski at Cray Huber Horstman Heil & VanAusdal LLC, 303 West Madison, Suite 2200, Chicago IL 60606; ; rlw@crayhuber.com. 6