• When Called On By the EEOC, Keep In Mind the Basics
  • September 12, 2006 | Author: Henry C. Spalding
  • Law Firm: Sands Anderson PC - Richmond Office
  • Like it or not, most every employer will have to deal with the Equal Employment Opportunity Commission (EEOC) at one time or another. Keeping a few basic points in mind will help ease what could otherwise be a difficult time.

    Background

    The EEOC is a federal administrative agency responsible for enforcing four laws. Title VII of the Civil Rights Act of 1964, the body of federal law which comprises the bulk of the EEOC's case load, prohibits employers from discriminating on the basis of race, religion, sex, national origin or color. A second federal law, the Age Discrimination in Employment Act, prohibits employers from discriminating against individuals who are 40 years of age and older. A third body of law, the Equal Pay Act, ensures that men and women who do the same job are paid the same wages. Finally, the EEOC enforces the Americans with Disabilities Act, which, among other things, prohibits employers from discriminating against disabled individuals and requires employers to provide reasonable accommodation for individuals with disabilities absent any undue hardship. As a threshold matter, these acts only affect employers with a certain number of employees. All of these statutes protect against retaliation.

    Charge Statistics

    EEOC's statistics for fiscal year 2004 through 2005 show that the total number of charges are holding steady. In 2004, for example, 79,432 charges were filed, compared to 75,428 in 2005. Race and sex-based discrimination charges lead the way, with 26,740 and 23,094, respectively, in 2005. Frequently, retaliation claims are included in the charge. Age and disability claims are also common, with relatively few equal pay act charges.

    EEOC Process

    An aggrieved employee, known as the charging party, has 180 days to file an administrative charge of discrimination with the EEOC. This deadline is extended to 300 days in states with state or local fair employment practices agencies. The charging party fills out a charge form, frequently with the EEOC's help. After the charge is filed, the EEOC may ask the employer to provide a position statement and/or to provide documents or information. It is always best to work with the EEOC investigator in furnishing the requested information. The investigator can also visit the worksite and interview employees. Again, cooperation with the investigator may put the employer in the EEOC's good graces. If an employer refuses to produce documents or make employees available for interviews, the EEOC can have a subpoena issued, forcing compliance.

    Employers have certain rights during the charge process. For example, an employer can speak to the staff person in charge of the investigation, who will typically share information. An employer is entitled to obtain copies of its own employees' statements. The EEOC will not provide a detailed statement of the charging party or witnesses for the charging party. These statements, as well as other materials in the EEOC's investigative files, can typically be obtained after suit has been filed by way of a Freedom of Information Act request.

    Resolution

    Typically, the EEOC actively encourages the parties to resolve their disputes, frequently during the investigation. Mediation, a form of alternative dispute resolution, is one way to settle claims. It is handled by a neutral third party who sometimes is an employee of the EEOC. The process is confidential, and settlement agreements do not constitute an admission of liability by the employer. Charges that are not resolved are returned to the investigative unit. Note that parties can settle at any time, even it negotiations fail during a mediation. Settlements between private parties do not preclude the EEOC from filing suit on its own behalf against the employer. However, in all but extraordinary cases, the EEOC will close its file and dismiss the charge once the employer and charging party have reached a settlement.

    Resolution of the Charge

    At some point, the EEOC will issue a form, known as a Dismissal and Notice of Rights form, concluding its investigation. The EEOC will check one of several boxes indicating its findings. For example, the EEOC can determine that the charge was not timely filed, that the facts alleged in the charge fail to state a claim under any of the statutes enforced by the EEOC, or that the EEOC is unable to conclude that the information obtained established a violation of the statute. Once the charging party has received the Dismissal and Notice of Rights form, it has 90 days to file a lawsuit. At times, a charging party can request that the dismissal form be issued before the EEOC has resolved the charge or completed its investigation.

    Remedies

    The EEOC is not an adjudicative body, so it can not require the payment of damages or issue any other relief to charging parties. However, in dealing with EEOC charges, it is important to keep in mind what remedies an aggrieved party may have at his or her disposal. For example, the statutes which the EEOC enforces contain provisions for an award of back pay, which is lost compensation dating back two years before the administrative charge was filed through injury of judgment or reinstatement. Back pay is reduced by any interim earnings or amounts earned with reasonable diligence. An award of front pay is subject to the court's discretion. This would be compensation for lost wages from the date of the trial forward. Any award must be supported by specific findings, which identify reasons for the award. There are no statutory ceilings on Title VII front pay awards.

    Equitable relief is also available. A court may order reinstatement or issue an injunction prohibiting an employer from continuing an unlawful practice. The court may enter an order granting seniority. The court may also set affirmative action goals concerning hiring and promotions.

    Remedies include statutory caps on compensatory damages, ranging from a $50,000 cap where there are 100 or fewer employees to $300,000 where there are more than 500 employees. Punitive damages require malice or reckless indifference to a plaintiff's rights. The ADEA and EPA permit liquidated damages for willful violations, equal to back pay, wages and other benefits.

    Conclusion

    In working with the EEOC as it investigates claims of discrimination, it is best to be thoughtful and cooperative with the investigator, who is no doubt handling a heavy caseload. A favorable finding for the employer may help to stave off an unwanted lawsuit, so keeping the investigator happy will most likely inure to an employer's benefit.