What happens after I file a discrimination claim? What happens if I want to sue the employer for discrimination?
Let me provide you some information regarding your employment case which Ihope will give you some greater insight into the discrimination administrative and litigation process.
In most instances, your claim starts with a filing with the Federal Equal Employment Opportunity Commission. Some states have a state equivalent to the EEOC. In addition, in those states, filing with the EEOC constitutes filing with the state counterpart.
Now, under the federal regulations, the EEOC has 180 days to investigate your claim from the date of your filing before you are entitled to ask for a “Right to Sue” letter. Which means, in the 180 days, the law requires that the administrative agency must be given the opportunity to independently investigate the allegations regarding your case. Now, the EEOC is not bound take make any determination in 180 days. This time period is provided in order to permit the agency the appropriate amount of time to investigate.
After 180 days, the charging party (i.e. you) can ask for a “Right to Sue” letter. You have to be careful about asking for the letter before the 180 days because you risk the possibility of the case being thrown out in court due to not allowing the administrative agency the opportunity to properly investigate (thus the phrase “exhausting your administrative remedies”).
Now, under the state regulations, you may be under the same criteria but it’s important that you investigate to determine they have the same time lines. It’s important because you want to ensure that you protect your state rights as well as your federal rights.
In most, the magic number is 180 days. You gotta let the agency do their investigation in order to exhaust the administrative remedies.
Now, what usually happens is that one of the agencies will take the lead and do the investigation. What happens is that they will contact you and the employer and see if you want to mediate. If the employer thinks they did nothing wrong, they may not mediate (even if they do agree to mediate, they may not think they did anything wrong but may be considering settling just to get rid of the case). So in this case, the case goes back to the investigator. What usually happens is the investigator will ask for a position statement from
the employer (which usually means their rebuttal to what you said). Then,the investigator will start his or her investigation regarding your case.
Usually, there is no time line to respond. And usually after the employer responds, that is the point when the investigation begins. During this time period, you will usually wait for additional information from the investigator as well as provide any updated information you may obtain.
Keep in mind that the investigation process is not bound by any time line. They can take as long as they need to take in order to come to a resolution. In addition, since we are in a down economy, a lot of their investigators are severely backlogged so it may take a while to move on your case accordingly.
Once it gets close to the 180 day mark, it may be time to decide if it’s better to allow the EEOC to continue their
investigation, ask for a right to sue letter for federal court, or just file a law suit in state court
Right now, the worst part of the process but the most important part of the process. You’re in the 180 day administrative period
where you literally have to sit and wait.
Ultimately, whenever you’re filing a charge against an employer, three things can happen. One, they can settle in the early phases of the
administrative investigation (which your employer declined to do). Two, the investigating agency may determine that they violated the law or didn’tviolate the law or they can’t tell. Finally, you can sue your employer.
The bottom line is that you are seeking compensation for damages you incurred by your job loss as a result of their actions. The reality is that in this economy, some employers will not compensate you until they are sued and, even then, they may MAKE you take them to trial in order for them to pay. Every case is different and the starting number in an employment case is zero since most employers will argue that they owe you nothing to start.
If you have to go to court, that’s a whole new process. With any court case, you have to sue the other party. They respond. You provide a request for discovery and they provide one back to us. Ypi have to depose witnesses and you will have to be deposed. They will
file motions. You will file motions. This whole process take another year before you even put a jury together to fight it out in court. So even if you get the right to sue letter, you might not go to trial until some time in the next year.
I know that sounds wild but follow this timeline. If you file a law suit in February 25, 2010, you have to serve it to them. That’s a couple of days. They may have 20 days to respond. You will file a request for documents and information. That’s another 30 days. So that puts you into April 2010. They will ask for documents from you and from you. They will give you 30 days. That takes you into May 2010. Youu will depose people from their job and they will depose you. That will probably happen in June or July 2010 (if you’re lucky). If you
have everything you, you may try to set the case for trial. Courts typically set the trial for 3 to 6 months out (Depending) so that will easily take you into 2011. Now, this is purely hypothetical but I wanted you to get an idea of how long this thing will
last so you can brace yourself and your family for the time you have to wait.
Remember, the employer doesn’t think they did anything wrong so they are under NO obligation to give you anything until they decide they want to or a jury / judge orders them to give you something. The process I describe is merely designed to give you an indication of what you will be facing if you have to go the distance.
I know it’s hard but it’s important to understand that it’s a process that you must go through and it takes time, money, and energy. Be patient.
Timing may not be enough
When you are terminated from your job or experienced some form of adverse employment action (whether it be demotion, disciplinary action, or hostile work place), you may take at the possibility that these actions may be in response to something else.
In other words, if you have done something you were legally permitted to do or you are a member of a protected class (i.e. race, sex, age, etc.), you may consider the possibility that you were retaliated against by your employer.
However, retaliation is sometimes very tough to prove. The first portions of the analysis may be easy. Part 1 may require you to demonstrate that that you were conducting an activity that was legally protected (like participating in an investigation or refusing to do something illegal). Part 2 may require you to demonstrate some adverse employment action (like getting demoted or fired). Those two parts are usually the easiest. The hardest part is the last part where you must demonstrate that there is a causal link between the two. Now, after you’ve laid out your theory, the employer has the chance to come back and say “Hey, I had a legitimate reason for doing what I did”. Then, the ball is back in your court. You have to prove that the employers actions were pre-textual. In other words, you gotta show that the adverse employment action was done in an attempt to retaliate against you for your actions.
One thing that courts may take into consideration is timing. In other words, courts will look at when you did something and how soon after the action did the adverse employment action occurred. Alot of times, people get pumped up because they think that if something bad happens within a short period of time, this information will solidify their case and slam dunk the employer.
However, you gotta keep a few things in mind when looking at timing:
1) The longer the time, the tougher the case. The longer the time period elapses between the protected activity and the adverse employment action, the more difficult it is to prove a causal link. In other words, if you complain of sexual harassment in 2002 but nothing happens to you until you get fired in 2007, you are going to have a tough road to prove the complaint is tied to the firing.
2) You better keep clean. If you were a problem child before and the employer documented this before and they continue to document that you are a problem child, you may have a hard time distinguishing between the employer’s retaliation and the employer merely documenting your behavior.
3) No magical time. Always remember that timing is added factor that courts can consider. however, timing is not enough by itself to automatically slap culpability to the employer. it can be extremely persuasive but it is NOT an automatic win.
It’s important that you take the opportunity to talk to your attorney before moving forward so that you can get a true appreciation of how ‘timing’ may play a role in your case. You don’t want make too much out of your situation if there is really nothing there.
It’s hard to separate your JOB from your LIFE
One attorney once told me that “employment law is the most PERSONAL law you will ever deal with!”. Interestingly so, he was right.
When you go to work, you are not merely ‘punching a clock’ as you would like to believe. Your job and your ability to do your job has a profound impact on you personally, professionally, emotionally, and psychologically:
1) Personally! Face facts. Your job is responsible for a great many things that are related to your life. Your job pays your bills. Your job puts clothes on your kids backs and puts your kids through college. You can’t drive a car without gas and you can’t have gas without money. It is a necessary part of your existence.
2) Professionally! One attorney once told me “You spend a lifetime developing your reputation and you can lose it in 60 seconds or less!”. We all take our jobs personally but we take greater pride if the reputation we establish for ourselves. If we are good at what we do, we take pride in the world knowing it.
3) Emotionally! Anything that happens to your job, happens to you and your family. If your company is going bankrupt, you are not put in the position of wondering what the future may hold for you. You will be stressed. You will be anxious. You will be scared.
4) Psychologically! If something happens to you AT your job, you can’t merely walk away from that feeling. Think about it, you spend 40 hours a week in front of the same people. So if your boss rights you up or a co-worker cusses you out, you can’t just write them off. You have to see those people tomorrow. More importantly, those feelings will linger as long as you are there.
So you can imagine the power and concern when you find yourself in a position where you have been terminated or let go. This single event is the most devastating event in most people’s lives. No one wants to go through the situation of being ‘let go’. The simple fact of the matter is that we are all control freaks to a degree and NO ONE wants to leave a siuation on terms other than their own.
So you can imagine how all of the things that I mentioned above could come into play. You now have to figure out how you are going to pay your bills. You now have to figure out how you are going to find a new job. If you are terminated, you wonder if it is because of you or something that you have done. Now, you wonder how other employers will view you being terminated.
A million different emotions go running through your head. What’s even worse is that when you have to leave, it may not be a sexy leave because there are some predisposed thoughts that you may have floating through your mind:
1) Computer. Let me tell you something. If it’s personal, don’t put it on your computer. The simple fact of the matter is that your computer is your COMPANY’s computer. So you don’t want to have this misguided thought that you are entitled to get your information off of your computer. Because in reality, the computer is NOT yours!
2) Employee File. Check the laws in your states but some people have a sense of ‘ownership’ when the employer maintains an employee file. As an employee, you think “Hey, it’s my information about me! Why can’t I have it? It’s MY employee file!”. Back up a second. Depending on the state, these ‘employee files’ are merely kept as a means to maintaining records about you and your activities with the employer. In essence, the employee file is the property of the EMPLOYER! Think about it like this, if employers knew that they had to give their employees the employee files, they may not maintain them. Why? If you ask for your employee file, what are you REALLY looking for in the file?? That’s right! Something that you can use against the employer, if possible. Don’t suck your teeth. You know what I’m talking about!
3) Employee Friends v. Friends Friends. I know that sounds crazy but so many times, when we leave our jobs in a ‘blaze of glory’, we think that those same people who we used to ‘vent’ to about our jobs will be our biggest allies if we need them. Hey, I hate to be the bearer of bad news but we are in a tough economy so you just can’t predict what an employee will do. And you can’t hold it against them. Friends are friends but business is business. They have the same families to feed like you so they may have to make the tough decision to not put themselves out there.
Understand this, my friends, jobs are tough and our connections to our jobs are even tougher. In this tough economy, alot of us are finding ourselves in the position of having to determine what we need to do in order to survive. I know it’s hard to separate one from another but you must in order to move forward.
It’s hard to be objective about your job
You know, it’s HARD to be objective about your job. We all think that we are either doing a great job or our boss just doesn’t understand us. Well, that may not be what we ALL think! LOL. However, the simple thing is this, we take our jobs very personally.
We REALLY take our jobs personally when we get fired. Aside from the loss of loved one, losing your job is truly a devastating and traumatic event. Now, it’s different if you were layed off due to tough financial times or you quit due to a better opportunity. Those situations are different because if you’re layed off, you’re one of alot of people in the same boat. If you quit due to a better situation, you did it on your own terms.
However, if you get fired or constructive discharged (i.e. your job sucked so bad due to the harassment, hostility and discrimination that you had no choice but to quit), it is ON and POPPIN! To lose your job is almost like losing a part of your identity.
Think I’m being melodramatic? Feel me on this one. When you work, you bust your butt to develop a good product or good service. You take pride when you get good feedback. You are happy when you get a positive evaluation. You are excited to see your growth. Any time some one fires you, you instantly take it personal. The employer is not merely firing you. The employer is slapping you in the face. The employer is telling you that YOU are not good enough. The employer is telling you that YOU were inadequate.
And what about when you are in the streets? Doesn’t it sting to tell people that you were fired? Don’t you worry that people are going to look at you ‘cock eyed’? Are they going to think that you’re a bad apple? And how are you going to explain this to future employers??
Now, it doesn’t matter that these things that I just said may not be true at all! It could be that your work performance wasn’t up to the company standard. However, that doesn’t make you a bad worker. It could be that you had a personality conflict. That doesn’t you a bad person. And let’s be real. You can easily explain that you had a philosophical difference with the company. Maybe you were desirous of leaving and your work productivity unfortunately slipped! You can’t let it get to you.
Even if they DID take advantage of you, you got to be cool as a cucumber! Everyone is going to expect you to get straight LIVE and JIGGY but you don’t want to give them the satisfaction. As I’ve stated in other blog posts, your ability to be cool under fire makes your credibility that more believable.
Listen, we’ve all heard the phrase “Business is Business” but the simple fact that our jobs have such a connection to our finances, our family, our future, and our life. When someone takes it upon themselves to disrupt that job, you will lose your objectivity.
Keep it cool and you will come out infinitely ahead in the long run.
