HR MATTERS E-TIPS
Understanding the EEOC Complaint Process
Do you know what to expect if an employee files a complaint with the
EEOC" Find out what the complaint process involves and how to train
supervisors to stay out of trouble.
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Here are some statistics that should get you thinking. Last year,
Equal Employment Opportunity Commission (EEOC) received over
79,000 complaints of employment discrimination and recovered more
than $250 million in back wages for the aggrieved employees through
settlements, mediation, and other administrative settlements.
And, these numbers don't even include the litigation the EEOC
on behalf of complaining employees. The EEOC pursued 378 cases in
court and collected about $168 million to resolve them. Employees
alleged in these claims all forms of employment discrimination
national origin, religion, age, and disability) involving such
hiring, termination, promotion, and leaves.
EEOC complaints can take months, and even years, to resolve and can
tie up your staff and divert attention from other pressing projects.
Further, even if the agency dismisses a complaint, the employees can
still file a lawsuit in court. Under these circumstances, an ounce
prevention can go a long way to protect your organization from the
of EEOC problems. Find out below what can trigger an EEOC
complaint, what the agency does during the process, and how you can
reduce claims with training and internal complaint resolution
* What the EEOC Oversees *
The EEOC is the independent agency created by Congress to enforce
federal employment discrimination laws. It has the authority to
initiate, and investigate charges of discrimination involving
subject to these laws. Employees who believe they have been
discriminated against generally must file a formal written complaint
the EEOC (or comparable state or local agency) before they may bring
discrimination lawsuit for damages or reinstatement.
Laws the EEOC is responsible for overseeing include Title VII of the
Rights Act (Title VII), the Age Discrimination in Employment Act (ADEA),
the Americans with Disabilities Act (ADA), and the Equal Pay Act
Title VII, which prohibits employers from discriminating based on
color, religion, sex, or national origin, and the ADA, which
discrimination against disabled individuals and requires
accommodations, apply to employers with 15 or more employees.
The ADEA, which prohibits discrimination on the basis of age against
persons 40 and older, applies to employers with 20 or more
The EPA, an amendment to the Fair Labor Standards Act (FLSA),
applies to all employers covered by the FLSA. It prohibits the
of different wage rates to employees of the opposite sex for equal
or for jobs requiring equal skill, effort, and responsibility
similar working conditions.
* Filing a Complaint with the EEOC *
To start the EEOC process, an employee must file a complaint with
EEOC alleging discrimination. The EEOC then notifies the employer
within 10 days of receipt by sending you a copy of the complaint,
name of the employee ("the charging party"), the basis for the
(i.e., race, religion, sex, etc.) and the issue(s) (i.e., hiring,
discharge, etc.) involved in the allegations, the date(s) of the
discrimination, and the name and contact information for the
assigned to the case.
In addition, the notification usually includes an explanation of the
administrative charge process, your obligation to retain relevant
and the non-retaliation provisions of laws enforced by the EEOC.
Relevant records include any employment records relating to the
under investigation. Such records include files related to the
employee, other employees alleged to be aggrieved, and all other
employees holding or seeking positions similar to the one held or
by the complaining employee. These records should be kept until the
final disposition of the charge.
At this point, you should consult legal counsel for advice on how to
respond to the charge and the EEOC's investigation. An attorney can
help evaluate the merits of the allegations, determine what
are relevant, and coordinate the response to the charge and the
In some cases, the EEOC will invite the employer to participate in
mediation before conducting an investigation. Mediation is an
means of dispute resolution offered by the EEOC as an alternative to
traditional investigative or litigation process. If both parties
neutral third party and trained mediator conducts a mediation
help the opposing parties reach a voluntary, negotiated resolution
charge. The parties may, but are not required to, have an attorney
participate in mediation. The EEOC's mediation program is a free,
voluntary, and confidential process that can save the parties time
money by avoiding lengthy and unnecessary litigation. If mediation
successful, the EEOC will close the charge without an investigation.
Even if mediation is not offered, you may request informal
through conciliation or settlement since the EEOC is required to
informal resolution of discrimination charges. Though the charge may
settled at any point during the process, settling early clearly
saves on the
time and effort associated with an EEOC investigation. If the
the EEOC reach a voluntary settlement agreement, the charge will be
* The EEOC's Investigation *
If mediation or conciliation is unsuccessful, the charge will be
investigation to determine if the facts support the employee's
In the course of that investigation, the EEOC will ask you and the
charging party to provide information. The agency may request the
-- A statement of position. This document allows you to respond to
the employee's allegations and tell your side of the story.
-- A request for information (RFI). The EEOC may ask you to
provide copies of personnel policies, employee personnel files, and
-- On-site visit. An on-site visit may render an RFI unnecessary, if
requested documents are made available during the visit.
-- Contact information for employees and/or witness interviews.
EEOC interviews with nonmanagment level employees may be
conducted without an employer representative, but you may be present
for any interviews with management personnel.
* Resolution of EEOC Charges *
Once its investigation is complete, the EEOC will make a
based on the evidence presented. If it finds no "reasonable cause"
believe that discrimination occurred, it will dismiss the complaint
send a Dismissal and Notice of Rights letter to the charging
and a copy to the employer. The letter explains that the employee
still file suit on his own in federal court within 90 days from
receipt of the
letter. (A charging party also may go to court instead of waiting
EEOC to complete its investigation. Therefore, in some cases, the
EEOC will issue a notice of right to sue if the charging party
But if the EEOC finds "reasonable cause," it will send both parties
Letter of Determination stating its finding and inviting them to
charge informally through conciliation. During this conciliation
the investigator works with the parties to develop an appropriate
for the discrimination. Like mediation, the conciliation process is
voluntary. It represents a final opportunity for you to resolve the
before the EEOC considers litigation. Settlement agreements reached
through mediation or conciliation are not considered admissions of
liability, but are legally enforceable.
If conciliation fails, either the EEOC or the charging party (or
sue in federal court. If the EEOC decides not to litigate, it will
case and issue a Notice of Right to Sue to the charging party
him to sue in federal court within 90 days.
* Steps to Prevent Complaints *
Virtually every employment decision has the potential to result in a
discrimination claim. However, you should be particularly concerned
about those decisions that involve the subjective judgments of
or supervisors, like promotion and transfer, training, and
Therefore, to prevent EEOC claims, you have to do more than simply
adopt an equal employment opportunity (EEO) policy. You also must
reinforce your organization's commitment by applying EEO principles
all decisions, terms, conditions, and privileges of employment, and
policies, communications, and actions.
In addition, you should
train supervisors in the basic requirements
implementation of EEO laws. Training should provide supervisors
regularly updated information and instruction on the following:
1. The basic requirements of the numerous federal and state equal
employment opportunity laws, how to implement them, and the legal
consequences of noncompliance.
2. The proactive steps that should be taken to eliminate workplace
3. The practical benefits of implementing equal employment
4. Ways to respond to complaints of discrimination.
5. Ways to document and resolve complaints properly.
You also should actively encourage employees to report complaints of
discrimination, for several reasons. First, discrimination laws
to respond to these complaints promptly. Many courts have held
employers liable because they did not respond to incidents of
discrimination that they knew or should have known about.
complaints often are lost on this point.) So, it is to your
know about potential problems so that you can respond appropriately.
Second, by encouraging employees to make complaints, you show your
commitment to eliminating discrimination. And finally, an internal
complaint process helps keep employees from looking to external
or venues, such as the EEOC or courts, for resolution of their
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