As a healthcare and business law firm, we work with many employers and employees to prevent, resolve, and, if required, litigate employment matters. When the underlying issue alleged is discrimination in the workplace, the law grants the employee a required process for investigating the matter through the Equal Employment Opportunity Commission (“EEOC”). The federal laws enforced by the EEOC apply to employers with 15 or more employees (20 in age discrimination cases) and make it unlawful to discriminate against a person based on race, color, religion, national origin, sex, pregnancy, age, disability, or genetic information. The laws also generally make it unlawful for an employer to retaliate against an individual for reporting discrimination or participating in the EEOC process. If an employee believes her employer has unlawfully discriminated and the parties are unable to resolve the matter among themselves, the employee may wish to file a lawsuit against the employer. Before doing so, however, the employee must exhaust her administrative remedies by initiating an action with the EEOC.1
Initiating EEOC Action
- Charge of Discrimination
To initiate an EEOC action, the employee must file a Charge of Discrimination,2 which is simply a signed statement asserting that the employer engaged in employment discrimination in violation of federal laws and requests the EEOC to take remedial action. The charge must be signed.
- How to File
Generally, if the employee is filing a Charge of Discrimination without attorney representation, the EEOC requires an interview with the employee before accepting the Charge of Discrimination. After the interview, the charge can be filed through the EEOC Public Portal. If you have attorney representation, a charge can be completed and sent directly to the EEOC. In non-COVID-19 times, you could present the charge in person to the nearest EEOC Office, but that is not presently available at all locations.
- Choosing the Right EEOC Field Office
The office the employee files at is not important; charges of discrimination can be filed at any of the EEOC’s field offices. Generally, however, the charge is investigated at the EEOC office closest to where the discrimination occurred. Each field office may be operating under unique practices in response to the COVID-19 pandemic, so consult your attorney about where and how to properly file a mailed charge to ensure efficient processing.
- Time Limit for Filing
When the discrimination occurs, which is not always a clear answer, a timer begins for how long the employee can file a charge. Where the discrimination occurs determines whether the period is 180 days or 300 days. Federal law provides 180 days but “is extended to 300-calendar days if a state or local agency enforces a state or local law that prohibits employment discrimination on the same basis.” See How to File a Charge of Employment Discrimination, EEOC.gov. Consult your attorney to determine both when the filing window begins and ends.
In our experience, COVID-19 has caused delays in processing charges of discrimination. This delay could be the result of the backlog of right-to-sue letters that likely accumulated from March 21, 2020 to August 3, 2020 while the EEOC paused sending these letters unless requested. See EEOC Resumes Issuance of Charge Closure Documents, EEOC.gov (Aug. 3, 2020). It could also be from the transition to remote working. Each EEOC office has a physical mailing address, email address, and fax number. The fax number is generally only provided when the deadline is approaching, but it may also be used when the EEOC office has been unresponsive to a filed charge.
If you have questions regarding this blog post, employment matters, or the EEOC process, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, firstname.lastname@example.org. You may also learn more about our law firm by visiting www.hamillittle.com.
*Disclaimer: Thoughts shared here do not constitute legal advice.
1.“Importantly, in 2019, the Supreme Court ruled that the administrative exhaustion requirement is not jurisdictional. Fort Bend County, Texas v. Davis, No. 18-525 (U.S. June 3, 2019). As such, the defense that the employee failed to follow the EEOC process may be lost if not raised timely.”
2. “For federal government employees, the process is slightly different. See Federal Employees & Applicants, EEOC.gov.”