Ten Things You Need to Know Before You File an EEO Compliant
By Dianne Floyd Sutton
So the organization and/or your supervisor did you wrong. Specifically what happened? When did it happen? What was going on? Were you fired? Were you demoted? Did you lose pay? Are you being harassed by a coworker, vendor, and/or supervisor? Did you tell anyone about it? What aspect of your employment do you feel is unfair? Is it covered under EEO? Are there any witnesses to the incident? What do you want? All these questions and more must be answered if you want to successfully file a complaint of employment discrimination.
This article is a summary of my professional responses to the most frequently asked questions by employees who are thinking of filing an Equal Employment Opportunity (EEO) complaint. The information is based on my ten plus years of experience with the U.S. Equal Employment Opportunity Commission (EEOC) and my twenty-five years as a Human Resource (HR) Consultant. My comments reflect my observations over a career in taking EEO complaints, conducting EEO investigations and designing/delivering EEO training. This is not legal advice. I am not an attorney nor have I played one on TV. The best source of EEO legal information is EEOC. When in doubt go to www.eeoc.gov for answers to your legal questions. You can also call an EEOC district office in your immediate area by going to the same web site for a number.
The following are ten things you need to know before you file. If you understand them you have a better chance of filing a more accurate complaint of employment discrimination. I urge you to read this first to help you determine what actions you need to pursue. You may decide that your complaint more accurately falls under another complaint process.
So do your homework and read these ten points!
1. First, understand that unfair treatment in the workplace does not always mean unlawful treatment. Recognize that the employer’s actions may be totally unfair but not unlawful. Not all negative things that happen in the workplace violate the EEO laws or procedures. The actions of the organization and/or supervisor may make you feel lousy. You feel you have been wronged and it bothers you, but it may not be unlawful – just a You feel you have been wronged and it bothers you but it may not be unlawful – just a crappy unfair action. For example, it is not illegal to require a high school diploma. However, an employer may have to allow someone who says that a disability has prevented him/her from obtaining a high school diploma to demonstrate qualification for the job in some other way.
2. Review and Understand the EEO Laws. Do your homework. The EEOC enforces Federal laws prohibiting employment discrimination.
Laws enforced by EEOC
• Equal Pay Act of 1963 (EPA) – This law makes it illegal to pay different wages to men and women if they perform equal work in the same workplace. The law also makes it illegal to retaliate against a person because he/she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
• Title VII of the Civil Rights Act of 1964 (CRA) – This law makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex. The law also makes it illegal to retaliate against a person because he/she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law also requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business.
• The Pregnancy Discrimination Act – This law amended Title VII to make it illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The law also makes it illegal to retaliate against a person because she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
• Age Discrimination in Employment Act of 1967 (ADEA) – This law protects people who are 40 or older from discrimination because of age. The law also makes it illegal to retaliate against a person because he/she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
• Sections 501 and 505 of the Rehabilitation Act of 1973 – This law makes it illegal to discriminate against a qualified person with a disability in the Federal government. The law also makes it illegal to retaliate against a person because he/she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law also requires that employers reasonably accommodate the known physical or mental limitation(s) of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer’s business
• Title I of the Americans with Disabilities Act of 1990 (ADA) – This law makes it illegal to discriminate against a qualified person with a disability in the private sector and in state and local governments. The law also makes it illegal to retaliate against a person because he/she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law also requires that employers reasonably accommodate the known physical or mental limitation(s) of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer’s business.
• Sections 102 and 103 of the Civil Rights Act of 1991 – This law amends Title VII and the ADA to permit jury trials and compensatory and punitive damage awards in intentional discrimination cases.
• The Genetic Information Nondiscrimination Act of 2008 (GINA) – This law makes it illegal to discriminate against employees or applicants because of genetic information. Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family member(s), as well as information about any disease, disorder or condition of an individual’s family member(s) (i.e. an individual’s family medical history). The law also makes it illegal to retaliate against a person because he/she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
Please do your homework and review each law at www.eeoc.gov.
These laws protect you against employment discrimination when it involves:
• Unfair treatment because of your race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.
• Harassment by managers, coworkers, or others in your workplace, because of your race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.
• Denial of a reasonable workplace accommodation that you need because of your religious beliefs or disability.
• Retaliation because you complained about job discrimination, or assisted with a job discrimination investigation or lawsuit.
3. An EEO complaint is only an allegation. It is a timely claim of illegal discrimination in the workplace that is handled through an administrative procedure. A complaint may result when an employee believes he or she has been unfairly treated because of a prohibited criteria or a protected class under EEO laws (i.e. race, color, physical/mental disability, etc.). The allegation itself is not proof that illegal discrimination has taken place. The investigation that follows provides the basis for a determination as to whether or not illegal discrimination has, in fact, occurred.
4. What is your employment issue? The issue is the identified employment action/behavior that you feel was discriminatory (for example, failure to promote, harassment, and job assignments). What did the organization, supervisor, or employee do to make you feel was the actions were discriminatory under EEO law? You must identify what specific action or behavior taken that you feels was discriminatory.
You must have a specific issue (identified employment action taken) and the basis (law which covers the issue).
If you believe that you have been discriminated against at work, you have the right to file a Charge of Discrimination. All of the laws enforced by EEOC, except for the Equal Pay Act, require you to file a Charge of Discrimination before you can file an EEO discrimination lawsuit against your employer. In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person’s identity.
Not all employers are covered by the laws enforced by EEOC, and not all employees are protected. Protection can vary depending on the type of employer, the number of employees it has, and the type of discrimination alleged. Also, there are strict time limits for filing a charge of which you should be aware. It is important that you know this. Under most Federal laws you have 180 days from the last alleged incident to file. Not only are there Federal laws but there are state and local EEO laws that may give you more protection and/or more time to file (more than 180 days). Please check your specific state and local laws first because they are not all the same. Go to the state website.
The EEOC works with Fair Employment Practice Agencies (FEPAs) at the (state and local levels. EEOC also works with the Tribal Employment Rights Offices (TEROs) for the protection of the employment rights of Native Americans. The EEOC contracts with approximately 90 FEPAs nationwide to process more than 48,000 discrimination charges annually. These charges raise claims under state and local laws prohibiting employment discrimination as well as the federal laws enforced by the EEOC. FEPA and TERO offices are listed at the EEOC website for locations and times.
5. Identify your basis. What specific prohibited criteria do you fall under? Why is your situation covered under the EEO law? The EEO laws identify the following as prohibited criteria or protected class: Age, Disability, Equal Pay/Compensation, Genetic Information, Harassment, National Origin, Pregnancy, Race/Color, Religion, Retaliation, Sex, Sexual Harassment and Retaliation.
State and/or local employment discrimination laws include all the federal prohibitions and additional criteria. For example, the state of Maryland must prohibit discrimination on the same Federal basis but the state also includes marital status and sexual orientation. Maryland also extends the ADEA to all ages. Ancestry is a prohibited criterion in the state of West Virginia, while Alaska also covers parenthood and marital status.
Some state and local governments already have laws on the books to cover Lesbian, Gay, Bisexual and Transgender (LGBT) employees. While there is no specific Federal law which covers employment discrimination of LGBT employees in the U.S., through a series of court cases the LGBT community is now covered by the EEOC. LGBT complaints of employment are now being investigated under Title VII of the Civil Rights Act of 1964 as claims of sex discrimination. The Federal sector EEO complaint process at 29 C.F.R. Part 1614 now also covers LGBT employees’ claims under sex discrimination.
6. Look for comparative data and document, document, document! Identify anyone else who has experienced this behavior. Is it continuous? Was it a one-time incident or event? Is the employment action and/or behavior being applied to everyone or just you? Even if the action was applied to all employees, was the action against you more severe?
The most common theory of employment discrimination is Disparate Treatment. Under this theory you are looking for a “difference in treatment” that can be related to your prohibited criteria. Another way to explain Disparate Treatment is that it is an inconsistent application of rules and policies to one group of people over another. Discrimination may result when rules and policies are applied differently to members of protected classes. An example of disparate treat would be disciplining Latino and Black employees for tardiness, while ignoring tardiness among white employees. Such inconsistent application of rules often leads to complaints.
You must show that others are not yelled at, belittled, or threatened, etc. If it is applied to everyone it may mean the supervisor is lousy and treats everyone the same. Now this may be a violation of the company’s HR policy, but not EEO laws. Are you labeled as a poor performer? Are there other employees labeled as poor performers? Were they of the same identified EEO criteria (i.e. race, color, sex, national origin, etc.) or different? What happened to them? Were they disciplined the same as you?
It is better to state the specific acts of harm than to claim harassment, unfair treatment, or discrimination. If you are too vague, your claim may be rejected.
I will always remember the statement of one of my supervisors at EEOC who said, “Strong feelings don’t count, evidence does”. So document, document, document! Keep a journal of incidents and dates. Save e-mails, memos, etc. It will be your word against your employer’s word unless you document.
7. Understand the Organization’s and Unions rules and regulations. The issue may not be covered by EEO laws but it may be covered under a union contract and/or an organization’s HR process and merit system. Are the actions a violation of the merit rules and regulations of the organization? Compare the processes and determine what gives you a better advantage of proving your complaint. It may be to your advantage to use another compliant process rather than the EEO process.
Most organizations have an internal EEO process. If you can, start there to begin your trail of documentation. Even if you start the complaint process within your organization first, you still have the right to file with EEOC. All of the organizational documentation will be reviewed by EEOC if a complaint is filed.
8. Understand Your Job Description and Performance Appraisal. Please read all the fine print
and ask for clarity when in doubt. Many job descriptions don’t spell out all the duties as well as the
skills, knowledge and abilities that are needed to be a successful performer. Many organizations use the
phrase “other duties as assigned” to cover what is not written down or not yet identified. As long as the
job duties are not immoral, illegal or detrimental to your health they may be considered under
your job description. This comes with the job!
There are usually two aspects of your employment that are measured in performance appraisals –
performance and behavior. You need to understand both requirements, i.e. what you are expected to do
on your job (performance) and how you are expected to act on and off the job (behavior). I have a client
whose merit rules include inappropriate behavior off the job which could be subject to dismissal – for
example, illegal drug use.
9. Determine how you would like to resolve the complaint. What is it you want? Do you want
the behavior to stop or training for the offending employee(s) or back pay? You will not get rich
winning an EEO Court case. Initially the law read “to make you whole” with respect to your
employment which means to give back what you lost due to the discriminatory act (i.e. back pay).
While the Civil Rights Act of 1991 allows punitive and/or compensatory damages, plus attorney’s fees,
a jury trial sets limits on how much you can get (based on size of the organization).
Be specific in what you want and be prepared to spell out and share the basis for your compensation
claim. For example, “First of all, I want $12,000, because I was forced by the ongoing sexual
harassment to resign my position. I was out of work for 12 weeks, and I was making $1,000 a week when
I left. Secondly, I want $3,000 to cover the expenses of the counseling sessions I had to attend to get
over the stress of the harassment. Finally, I want $5,000 for the six months of stress I was under.
During that time I had trouble sleeping and worried so much I lost 20 pounds.”
Be prepared for a long process. Also, be prepared to consider a compromise, i.e. to settle for less than
what you are asking. The better you do your homework, the better your chances of successfully filing
an accurate complaint of employment discrimination. You may be offered a chance to mediate your
case with your (present, former or potential) employer before the EEOC, state or city/county even
investigates the case. This is called a pre-determination mediation because there has been no
investigation and no finding of wrong-doing. It is possible that you and your employer may be able to
reach a settlement in this informal process. If you don’t, your case will then be
Understand that even if your complaint is found in violation of the EEO laws that you may still have to
go to court to resolve the issue. In a case like this, EEOC will issue you a “right to sue” in Federal
District court. No organization is going to admit to guilt even if found in violation.
10. EEO does not mean special privileges. Do not clog up the EEO system with erroneous or
frivolous complaints (when you know they are not in violation of EEO laws). Just because you are a
member of a protected class does not mean you have special privileges. Talk to your supervisor,
manager, union steward, EEO or HR office before filing a complaint. Sometimes what you perceive as
discriminatory behavior is just bad supervision or bad treatment by coworkers, but it is not based on one
of the prohibited criteria.
While there are no guarantees, the better you understand the laws and the processes, the better your
chances of being successful in this endeavor. When in doubt check with EEOC or your state and local
EEO offices or a professional in EEO law.
Do your homework!
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