Equal Employment Anti-Discrimination

Administrative Closure: Charges closed for administrative reasons, include: failure to locate charging party, charging party failed to respond to EEOC communications, charging party refused to accept full relief, closed due to the outcome of related litigation which establish a precedent that makes further processing of the charge futile, charging party request for withdrawal of a charge without receiving benefits or having resolved the issue, and no statutory jurisdiction.

Merit Resolution: Charges with outcomes favorable to charging parties and/or charges with meritorious allegations. These include negotiated settlements, withdrawals with benefits, successful conciliations, and unsuccessful conciliations.

No Reasonable Cause: This is EEOC’s determination of no reasonable cause to believe that discrimination based on the evidence obtained in the investigation. The charging party may exercise the right to bring private court action.

Reasonable Cause: EEOC’s determination of reasonable cause to believe that discrimination occurred based upon evidence obtained in the investigation. Reasonable cause determinations are generally followed by efforts to conciliate the discriminatory issues which are in the charge. Note: Some reasonable cause findings are resolved through negotiated settlements, withdrawals with benefits, and other types of resolutions, which are not characterized as either successful or unsuccessful conciliations.

SETTLEMENTS (NEGOTIATED): Charges settled with benefits to the charging party as warranted by evidence of record. In such cases, EEOC and/or FEPA is a party of the settlement agreement between the charging party and the respondent (an employer, union, or other entity covered by EEOC enforced statutes).

SUCCESSFUL CONCILATION: Charges with reasonable cause determination closed after successful conciliation. Successful conciliations result in substantial relief for the charging party and all others adversely affected by the discrimination.

UNSUCCESSFUL CONCILIATION: Charge with reasonable cause determination closed after efforts to conciliate the charge are unsuccessful. Pursuant to Commission policy, the field office will close the charge and review it for litigation consideration. Note: Because “reasonable cause” has been found, this is considered a merit resolution.

WITHDRAWAL WITH BENEFITS: Charge is withdrawn by charging party upon receipt of desired benefits. The withdrawal may take place after a settlement or after the respondent grants the appropriate benefit to the charging party.

Yes

Yes.

Yes. This only applies to private sector complaint. The federal sector does not issue reasonable cause findings.

Title 18 U.S.C. § 1001 of the federal criminal code prohibits the submission of false information during an official investigation. Charging parties, if you don’t have the evidence to support the allegation(s) please do not submit false evidence. The same holds true for respondent.

Each federal agency is required to have a Director of Equal Employment Opportunity (EEO), who is responsible for the implementation of a continuing affirmative employment program to promote equal employment and to identify and eliminate discriminatory practices and policies. In addition, each agency must develop policies, procedures, and guidance relating to the processing of employment discrimination complaints governed by the Commission’s Regulations in 29 C.F.R. Par 1614. These policies and procedures can be found at www.eeoc.gov/federal/md110/md.html.

No: [The applicant must contact the agency and get the name of an EEO Counselor to begin the pre-complaint counseling within 45 days of the date of alleged discrimination. Federal employees are governed by the same procedures.]

Yes

U. S. Department of Labor (DOL) under the Veterans Employment Opportunity Act. The disabled veteran has 60 days in most cases.

The employer can be fined up to $17,000 for each offense per location.

The following:

Fair Labor Standards Act (minimum wage) Poster;

Family and Medical Leave Poster;

USERRA Notice;

Equal Employment Opportunity (EEO) Poster;

Occupational Safety and Health (OSHA) Poster; and

Polygraph Protection Poster.

The Department of Labor (DOL).

Yes: Review the EEOC’s Policy on arrest and criminal records at www.eeoc.gov.

No

No. An employer in furnishing oral or written references concerning charging party as may be required by same or by prospective future employers, the employer may mention only the nature and duration of charging party’s employment.

Charging parties should make no more than four telephone calls to an investigator about the status of a case. Log the date and time, why the call was made, and make sure a message is left on the voice mail giving the investigator the best time to return the call. If the investigator fails to return the calls send a certified letter to the investigator, and [cc] the District Director. If no response is received write your congressional representative.

By quarters. The information listed below describes the procedures:

What were you making at the place of employment when the discrimination occurred (hourly rate or base salary);

What you actually made or would have been making by using reasonable credited earnings;

Add any loss from previous quarters (carry over loss) to quarter loss;

Calculate interest for that quarter on total loses; and

Add interest using the current IRS interest rate.

The following is listed below:

Confidential witness information;

Cover sheets on Commission Decisions;

Investigator’s notes, supervisory memorandums, which reveal recommendations, proposals, strategy, or deliberative processing actions of a charge.

All memorandums and notes from the Regional Attorney, the Office of General Counsel, Legal Counsel, or the Department of Justice;

All information identifying other respondents; and

All reports that EEOC request other respondents to submit; however, the EEO-1 Report on the respondent which a charging party has filed a charge against, the document can be made available upon request.

Always make a request that the Log of Investigation Settlement Action EEOC Form 159 is included when the file is received. Every action taken by the investigator must be on this form.

Yes: Some of the EEOC offices will require charging parties to complete and sign an EEOC’s Form #157 AGREEMENT OF NONDISCLOSURE. The investigator will be sent to a company like alphagraphics that EEOC has a contract with. The charging party will be required to pay for copying fees.

Respondent’s position statement is nothing more than telling its side of the story regarding the allegation(s) raised in the charge. EEOC has dismissed numerous cases without respondent’s position statement. Do not let EEOC dismiss your case without your input.

EEOC’s Compliance Manuel Procedures Volume I Section 27, Pre-Determination Interviews (PDI’s) states a PDI should held with respondent in cause cases and with charging party and in no cause cases when sufficient evidence has been obtained to support a proposed determination. [There are expectations regarding these procedures.] The purposes of the PDI are to inform respondent and charging parties of the proposed finding and give them a final opportunity to provide additional information in the case. [Charging parties should never have a pre-determination interview with an investigator without having a copy of respondent’s position statement. Ask the Investigator for a copy of the respondent’s position statement. If facts are disputed in the position statement submit them in writing with the evidence, and send the information to the investigator by certified mail]. EEOC is allowing investigators to dismiss cases without giving charging parties pre-determination interviews.

The employer should know the following:

EEOC is an independent federal agency created by Congress in 1964 to eradicate employment discrimination;

EEOC has authority to receive, initiate, and investigate charges of discrimination filed against employers who have a statutory minimum number of employees;

EEOC’s role in an investigation is to fairly and accurately evaluate the charge allegations of all the evidence obtained. This information can be found at www.eeoc.gov/employers/investigations.html.

No: EEOC’s Mediation Program is just a “con and shell game” played on the charging party and respondent. In most cases 95.5% of the time the employer is going to offer the charging party as little as possible to resolve the case. It might be different if you can afford to hire an attorney to participate in the mediation. However, if you can’t afford an attorney call a civil rights organization and see if one of their representatives will attend the mediation. [The only real advantage of mediation is to see how seriously respondent is to resolve the case. Don’t disclosed evidence and/or names of witnesses during the mediation].

Yes

Yes: Aggrieved individuals who have filed a charge should wait approximately ninety (90) days before making the call. When the investigator is reached asked him or her, has the employer submitted a statement of position; and if the answer is yes ask for a copy of it. Some of the EEOC Offices will require the charging party to complete and sign EEOC’s Form 157 Agreement of Non-Disclosure and others will just require you to write a letter. Only request a copy of the employer’s statement of position at the time. You can get a copy of the investigative file at a later date. Also asked the investigator how your charge was classified. (If the charge was initially categorized as Category C, then ask the investigator why you were not promptly informed).

In Category C. The Agency’s IMS Reports is evidence to support this fact.

The examples listed below:

Nonjurisdictional charges and those failing to state a claim (dismiss
under 29 C.F.R. § 1601.18);

Charges unsupported by any direct or circumstantial evidence of discrimination, and the charging party was in a position to have access to such evidence (dismiss under 29 C.F.R. § 1601.19 and §§ 1601.15(b) and 1601.18(b));

Self-defeating charges (dismiss under 29 C.F.R. § 1601.19);

Charges where the allegations are not credible, including cases filed by repetitive charge filers where, based on the large number of charges, the charging party is not credible. (dismiss under 29 CF.R. § 1601.19); and

ADA charges filed more than 180/300 days after the date of violation.

Yes: The ADEA and EPA statues of limitations bar recovery of relief for actions that occur more than two years before lawsuit if filed by an aggrieved person(s) or EEOC (three years in case of willful violation at the time the violation occurred.)

The Priority Categorization System classifies charges into the categories which are the following:

Category A: Enforcement Plan/Potential Cause Charges. This first

Category includes (1) charges that fall within the national or local

enforcement plan and (2) other charges where further investigation will

probably result in a cause finding. Charges should also be classified as

Category A if irreparable harm will result unless processing is expedited.

Category B: Charges Requiring Additional Information. Many of

these charges will initially appear to have some merit but will require

additional evidence to determine whether continued investigation is likely

to result in a cause finding. In addition, in other cases it will simply not be

possible to make a judgment regarding the merits of the charge at charge

receipt. In these cases, additional investigation will be needed, as

resources permit, to determine whether these charges should be moved

into Category A and given priority status or moved into Category C and

dismissed. Category B charges may be placed in “suspension” where the

charging party has filed suit based on the issues raised in the charge.

Category C: Charges Suitable For Dismissal. A charge placed in

this category can be dismissed when the office has sufficient evidence from which it is not likely that further investigation will result in a cause finding.

Yes: Aggrieved person(s) should be informed at the intake process that the employer will be notified within ten (10) days of receipt of the charge; including the identity of the aggrieved person(s) who filed the charge. The employer will receive from the EEOC Form 131 (Notice of Charge of Discrimination), which will either request a position statement or request for information, normally; the employer is given thirty (30) days to respond.

Yes: In a EPA charge of discrimination an aggrieved person(s) must be very careful. In order to prevail an individual must have equal skill, effort, and responsibility than similarly situated males working at the employer’s facilities, but if one of the aforementioned factors are missing it will be difficult to file a charge only under EPA.

The damages are based on the size (number of employees) of the employer. The limitations are stated as follows:

15 to 100 employees : $50,000

101 to 200 employees : $100,000

201 to 500 employees : $200,000

501 employees or more : $300,000

Yes: Section 1981(A) (b) sets limitations on certain damages that aggrieved person(s) may recover. For example, it specifies that punitive damages are available only if the aggrieved person can demonstrate that respondent engaged in discrimination “with malice and reckless indifference to the federally protected rights of an aggrieved person.” It also provides that punitive damages are not available against governmental entity or political subdivisions. In addition, it reiterates that compensatory damages do not include any relief authorized under § 706 (g) of Title VII. It also provides a limitation on the sum of punitive damages and compensatory damages for “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses.” Aggrieved person(s) who have filed charges of discrimination should go to their doctors and other medical professionals and seek medial treatment as soon as possible. If you do not have insurance go anyway and keep a record of the doctors who turn you away.

Section 1981 imposes no limitations like Title VII of 15 or more employees. A charging party cannot sue employees under Title VII. However, under Section 1981, there is no limit on the number of employees and they can be sued. Respondents get frighten when they see a lawsuit with a Section 1981. The statue of limitations for filing a Section 1981 is four years. An aggrieved person can go right to court under a Section 1981 without going to EEOC and filing a charge of discrimination.

No: Race and retaliation can only be brought under Section 1981.

Yes: Back pay may be obtained under Title VII for a period of up to two years before the filing of a charge, so long as the charge itself is timely filed pursuant to 29 C.F.R. § 1626.7 (d) (1) and § 605.7.

Yes: EEOC will not process ADEA or EPA complaints which do not allege violations affecting any aggrieved person within two years (three years in cases of willful violations) of the date of the complaint.

Yes: There is a 180-day limit on the filing of a Title VII and ADEA charge. ADEA charges can be filed for EEOC processing within two years (three years in cases of willful violations of the alleged violation pursuant to

29 C.F.R. § 1626.7 (a)). When an ADEA charge is filed in a jurisdiction with a State agency, the time limit is generally 300 days; or within 30 days of receipt of notice of the agency’s action, whichever occurs first see (§1626.7 (b). EEOC may bring an action within the aforementioned two or three year time limits on its own, if the charge was not timely filed.

On site investigations should be conducted in cases classified in category A and C under EEOC’s Priority Charge Handling Procedures (PCHP). Investigators have the opportunity to interview witnesses, tour respondent’s facility, examine, copy, or transcribe records.

EEOC Offices are allowing investigators to put too must information in charges. Don’t let investigators name your witnesses in the charge. Investigators take note during the intake processing of a charge. However, on numerous occasions these notes get lost. Request that the investigator transpose the notes into an affidavit for your signature, and give you a copy (Always read the charge and affidavit very carefully before leaving the office to make sure that all of the allegations were listed.

Example – On January December 12, 2010, I was denied a promotion to the position of Director of Engineering. I have over 30 years of experience in my field; I have worked in 15 different countries on large engineering projects.

I have received numerous awards for my job performance. Paul Smith, a white male, age 25 with less experience and/or education was selected for the position. On December 15, 2010, I filed an internal complaint with the Human Resources (HR) but noting was resolved. On December 29, 2010, I was terminated.

I believe that I have been discriminated on the base of race, (Black), age 52, and retaliated against in violation of Title VII of the Civil Rights Act of 1964, as amended. I also believe that I have been discrimination against because of my age in violation of the Age Discrimination in Employment Act of 1967.

No:     Remember this is the very first step of the investigation. There are too many distractions taking place with other aggrieved person(s) waiting to file charges of discrimination. They too are likelytalking about what happened to them. There have been numerous times that aggrieved person(s) have omitted timely allegations. Take the Intake Questionnaire home and complete it. The Intake Questionnaire will ask the following. Describe the harm or employer action for which you are filing a complaint. Include the names and job titles of all those involved and the dates you were harmed. There is not enough room if you make more than one allegation. Therefore, draft a detail synopsis and say see attached. Make a copy of the Intake Questionnaire and synopsis for your record. Make sure that you list all witnesses. [All testimony must be taken under oath before an investigator and/or officer that has the authority to administer the oaths to witnesses who is personally responsible for the recording]

Yes:    All aggrieved person(s) who visit an EEOC Office must complete an Intake Questionnaire before being seen by an investigator. However, if the aggrieved person(s) has an attorney he or she can get a copy of the Intake Questionnaire and give it to their attorney to complete and give it to the persons wanting to file a charge of discrimination.

Yes:   Most EEOC Offices maintain a 60-day retention file organized by month of receipt of the charges/complaints filed alphabetically by the aggrieved person(s) name. Before disposal of any potential charge/complaint contained in the 60-day file, a review of the charge/complaint must be made to ensure that any matter evidencing sufficient information warrant Commission action (i.e., a Commissioner charge or a directed Equal Pay Act (EPA) or Age Discrimination in Employment Act (DAEA). Under the EEOC’s Priority Charge Handling Procedures (PCHP), telephone requires charges/complaints are maintained for 90-days before the charge inquiry is atomically closed. The charges or complaints are now monitored by EEOC’s Integrated Mission System Report (IMS).

Yes:    When a person lives outside the normal commuting area, the charge/complaint can be taken by telephone and mailed to the charging party or complainant for verification and signature. However, local charging parties or complainants should be encouraged to visit the office for an intake interview.

If the “reasonable cause” determination is made to a private employer; and conciliation efforts fail to resolve the case, EEOC can make a decision depending on its workload to litigate the case and if not issue the charging party a notice of right to sue so that he/she can file a lawsuit. In cases where a “reasonable cause” has been made against public, state, and local governments; and conciliation efforts fail, the case must be sent to the United States Department of Justice to litigate. Charging Parties, please don’t place any hope on the U.S. Department of Justice engaging in litigation on your case. If it happens, it will be a miracle.  If the United States Justice Department decides not to litigate the case, it will issue a notice of right to sue to charging party.

Yes:   Respondents will petition to revoke a subpoena merely to delay an investigation. EEOC must act on the petitions within established time frames i.e. eight calendar days from receipt of the subpoena. The petition package will be distributed to the Commission on a 72 hour “notice and hold” consideration procedure. This is why EEOC does not like to issue subpoenas if it can avoid because it might have to seek court enforcement.

Yes:     In the event it is necessary to enforce a request for information against a respondent who refuses to cooperate, the EEOC has subpoena authority pursuant to § 1601.16 of EEOC’s Procedural Regulations. District Directors have the authority to sign and issue a subpoena. Investigators have no excuses of respondents not responding to requests for information and/or providing a position statement. No cases should be dismissed with respondent submitting a position statement.

The format and content are the following:

• The investigator will first introduce himself/herself and then charging party. If respondent has brought additional evidence to the conference, it should be received by the investigator who should give a brief description of each type of document presented, so that the charging party is aware of the type of evidence presented to the investigator by the respondent. The investigator should explain that any additional evidence submitted during the conference will be analyzed,

• After conducting the preliminaries, the investigator should review the fact finding conference process to ensure that all parties understand that:

1.    Notes of the conference are being taken;

2.    If counsel for respondent and/or charging party is present, they will be limited to an advisory role and will not be permitted to speak for their client or to cross-examine;

3.    Each unresolved allegation of the charge will be closely examined and fully discussed; ample time will be allowed to the charging party to explain and support each allegation and to the respondent to present and defend its position;

4.    Neither the charging party nor the respondent is permitted to bring a recording device into the conference; and

5.    EEOC has the authority to hold a fact finding conference pursuant to § 1601.25 (c) and § 1626.15 (a) of EEOC’s procedural regulations.

The fact finding conference is an informal investigative technique, rather than an adversarial proceeding. This procedure has always been available for investigators to use, but many don’t take advantage of it to resolve cases.

Fact finding conferences and informal settlements are part of the rapid processing procedures. Investigators are required to draft an Investigative Plan (IP) and Request for Information (RFI), which should be tailored to address the issues directly affecting the charging party. Example, a 50 year old black applicant with three degrees in engineering and 25 years of experience applies on four different occasions to become director of the department but is not selected for the position. Respondent promotes a white male, age 25 with 5 years of experience with only one degree in the same field. The RFI, Request for Position Statement, and copy of the charge must be sent with EEOC’s Form 131, Notice of Charge of Discrimination to respondent. Settlement offers must be held in abeyance until after the investigator has received a response from the respondent. While waiting receipt of respondent’s statement and response to the RFI, the investigator should interview charging party’s witnesses. (Settlement offers should be held in abeyance until the RFI data and/or position statement has been received and analyzed).

Yes:    Charges that are suitable for rapid processing from the intake unit can be processed under the rapid processing procedures.

Yes:    In cases where retaliation is causing irreparable harm because an aggrieved person(s) have filed a charge of discrimination against a respondent, the EEOC can file for temporary or preliminary relief. (Note to Charging Parties or Complainants, if you are experiencing any type of retaliation after filing a charge of discrimination or provided testimony in a case, it is extremely important that you immediately contact the EEOC Office where you filed your charge). Most often, retaliation stems from the filing of a charge or complaint. The EEOC by law is required to take immediate legal action against the respondent.

No:     If the charging party or complainant dies the above does not apply, i.e., there are no other potentially aggrieved persons for whom EEOC would seek relief, the legal unit must determine whether a cause of action under state law survives the party and who inherits the rights and interest arising out of the charge. [It is extremely important for charging parties and complainant to have an up-dated will for this purpose.]

Title VII requires that persons filing charges or those who file charges on behalf of others must sue within 90 days following receipt of notice of dismissal of the charging parties right to sue. The ADEA and EPA don’t contain this provision.

It is not necessary for a charging party filing a charge or complaint which has been taken over by another company to file a separate charge against the successor company. A company which has assumed the personnel and primary business of a respondent is a successor company, and assumes any charges filed against the original company. If the company is not a successor company, e.g., and takes over the business property, but makes a different product, a separate charge or compliant must be taken for each company if both are parties to the matters being aggrieved.

Yes:    An amended charge is to cure a technical deficiency (e.g., the date of the most recent date of discrimination or to correct or add the respondent’s correct address) or to add allegations which are like and related to the existing charge. If the amendment is made in a unit other than an Intake Unit, the amended charge should be taken by the Investigator who was assigned the charge. If there are minor amendments which occur at the fact finding conference, they should be added to the existing charge and initialed by the charging party.

Yes:   When it becomes apparent that a potential aggrieved person is complaining about a sensitive incident of alleged sexual harassment or racial remarks, but is embarrassed or reluctant to discuss the matter with an intake investigator of the opposite sex, he/she should be given the option to talk to an investigator of the same race or sex.

Yes:    A union may file a Title VII charge as an aggrieved party.

Yes:   Charging Parties in deferral/referral jurisdictions should be informed that a copy of the charge will be sent to the Fair Employment Practice Agency (FEPA), and that FEPA may process the charge if it has a contract with EEOC for such processing. If the Title VII charge is in a certified FEPA jurisdiction, the charging party must be informed that EEOC will review the FEPA’s final finding if review is requested within 15 days of the charging party’s receiving the finding. Charging Parties must submit their request in writing to the District Director. This is called a substantial weight review.

Yes:   EEOC’s policy is to not disclose the identity of aggrieved persons on whose behalf a Title VII or ADEA charge is filed or the identity of ADEA/EPA complaints. Every effort will be made to ensure that their identity will not be disclosed, unless required in a court action, or prior written consent. Even though the person has requested confidentially he or she may later permit EEOC to use his/her name in a negotiated settlement or conciliation efforts.

Yes:    Under the ADEA, charges or complaints can be filed within two years in the case of willful violations; however, the EEOC will not process complaints when the alleged violation does not fall within the above time frames.

Yes:   Counseling should be given to a charging party with a potential class charge when the charge is based on an acknowledged respondent policy.

No:  A charge should always be taken from a walk-in with a valid claim regarding the aforementioned federal anti-discrimination laws, even if further information must be obtained before the investigation can continue.