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.
Why employee manuals are so important
How many of you remember getting hired and being given some 10 to 100 page manual that you are suppose to read and then sign indicating that you understand what you read????
A lot of you should have raised your hands. I can confidently say that one of the single most boring activities has to be the reading employee manuals. Most of us when we start our jobs are so happy to be working that we barely even skim the pages and go RIGHT to the page where it says sign. In some cases, we don’t even know where the employee manual is after we signed it.
Unfortunately, in too many instances, when something crazy jumps off at our work place, the best tool for identifying your rights is that employee manual.
Now, that may do nothing for you if you are in a tough situation but here are a few things you should think about:
1) When you get hired
Read! Read! Read! I know it’s boring and I know you feel it’s a waste of your time but TAKE the opportunity to read the employee manual. This way, you are up to speed on what you are entitled and your job rights.
2) What should you be looking for?
You definitely want to focus on any grievance procedure and disciplinary protocol. You want to know what you need to do if you are contesting your discipline or what the grounds are for disciplining you.
3) What if they don’t have one?
Some employers may not have an employee handbook or policy manual. In some states, they may not be required to have one so don’t be surprised if they don’t.
4) While you’re working
Ask your employer if they have periodically updated the employee manual. If they don’t have one, ask if they intend produce one. More importantly, if you receive updates from your employer regarding Human Resource policies and procedures, READ! READ! READ!
5) When something goes bad
Here’s where most people are interested. And this situation can sometimes be delicate. If you are unsure about your rights, don’t be afraid to ask to review the employee manual. If you are still tentative about going to your supervisor, go speak to Human Resources and ask for a copy (Or at least a review).
The employee manual (if your employer has one) is a valuable tool that can be your best friend and ally in situations involving your employment. Don’t be school to check to see if your rights are violated. If you don’t, no one else will.
