What Does the EEOC Do?

/

A lot of people have heard of the EEOC, but like many government agencies, it isn’t always clear what falls within the organization’s charge. If you are like many people you may be wondering “What does the EEOC do?”

In this blog post, I will review the role of the Equal Employment Opportunity Commission (EEOC) in reviewing, negotiating, and litigating discrimination claims. I will explain the laws the EEOC is charged to protect, and explain what happens after you file an EEOC complaint.

The EEOC Enforces Civil Rights Laws

The EEOC is charged with enforcing a wide variety of discrimination laws:

  • Title VII of the Civil Rights Act
  • The Pregnancy Discrimination Act
  • The Equal Pay Act
  • The Age Discrimination in Employment Act
  • Title I of the Americans with Disabilities Act
  • The Rehabilitation Act
  • The Genetic Information Nondiscrimination Act

Together, these statutes protect against illegal discrimination at work, in housing, and within the federal government. The EEOC hears complaints related to discrimination based on:

  • Race or color
  • Religion
  • National origin
  • Sex or gender
  • Marital status or pregnancy
  • Old age
  • Disability
  • Retaliation for participating in an investigation of discrimination

In 2012, the EEOC took the position that discrimination based on a person’s sexual orientation and gender identity or expression was illegal under existing gender discrimination laws. Over the next four years, there were a significant number of EEOC decisions and federal court rulings on sexual orientation discrimination and transgender harassment. However, there has not been a clear, binding decision from a Court of Appeals or the U.S. Supreme Court. Now, under the Trump Administration, the EEOC’s website relating to those issues have been taken down. It isn’t clear whether the EEOC will continue to put a high priority on these cases.

What Does the EEOC Do With Private Complaints?

If you think you have been discriminated against, you have 180 days to file a complaint with the EEOC (or 300 when state discrimination laws also apply). You can do so with or without the help of an attorney. But what does the EEOC do once it gets that complaint?

When you file an EEOC complaint against your private employer (rather than the federal government), the matter is referred to an EEO counselor. The counselor will inform you of your rights and of how the process works.

The EEOC Doesn’t Take Every Complaint

Even before your complaint goes to a hearing, the EEOC may still dismiss it if:

  • The counselor believes there is no claim
  • The same claim has already been decided (or is pending)
  • The complaint was filed too late
  • You have other complaints that are unrelated to your current complaint that aren’t disclosed to the counselor
  • You already filed a civil lawsuit on the issue
  • You already chose to use a different procedure (including grievances) instead
  • You fail to communicate with the EEO counselor
  • You have complained about the EEOC process in the past
  • You have filed your complaint for an improper purpose

If some or all of your complaints are being dismissed, the EEOC must explain the reason in writing. You have the right to appeal the decision once all of your claims are resolved.

Informal Counseling

Unless the counselor dismisses your complaint, he or she will work with you and your employer to attempt to resolve the matter informally. If your need is urgent, or if your employer is not interested in resolution, you may also request a formal hearing before an EEOC administrative judge.

The informal counseling process can take up to 30 days. If your concerns aren’t resolved within that period the EEOC will send you a Notice of Final Interview, which gives you 15 days to file a complaint in the appropriate agency based on the nature of the discrimination alleged.

EEOC Mediation

Many EEOC complaints get referred to mediation instead of the informal counseling process. This is a form of alternative dispute resolution where you and your employer agree to sit down with a neutral mediator to try to find a resolution that everyone can live with. However, many employers will not agree to mediate, particularly if you work for a smaller business not as familiar with the process.

EEOC Investigations

If the informal process or mediation fail to resolve the matter, the formal investigation begins. Your employer will be asked to provide a “Respondent’s Position Statement” in response to your complaint. You are entitled to review and respond to that statement. Depending on the nature of your complaint, the EEOC may also visit your workplace, interview witnesses, gather documents, and ask your employer additional questions. This process can take time — in 2015, an investigation took an average of 10 months to complete.

EEOC Notice of Right to Sue

An EEOC complaint ends one of three ways:

  1. The EEOC negotiates a voluntary settlement with you and your employer
  2. The EEOC is not able to determine that the law has been violated or decides that it will not pursue a lawsuit on your behalf. In either of these cases, it will send you a “Notice-of-Right-to-Sue.” It signals that you have completed the administrative process and may now proceed to court through a private lawsuit.
  3. The EEOC files a lawsuit in federal court on your behalf.

A Notice of Right to Sue doesn’t necessarily mean you have a losing case. The EEOC has limited resources, so it only chooses to represent employees with strong cases in certain high-priority areas. If your case doesn’t fall within one of those priorities, you will need to turn to a private employment discrimination attorney to file a lawsuit on your behalf.

At Eisenberg & Baum, LLP, we are happy to help you through the EEOC process. Whether you are preparing for a formal hearing or have been sent a Notice of Right to Sue, our employment discrimination lawyers will review your case and help you prepare a strategy to get the relief you need. Contact us today to schedule a free initial consultation and get your case started.

Four Ways Women Face Discrimination at Work: And How to Fight Them

/

In workplaces all across the country, subtle forms of discrimination go undetected, and unaddressed. Managers, supervisors, and coworkers can make their job sites better for everyone by fighting back against gender bias at the office, or on the line.

In this blog I will review the American Bar Journal’s article entitled “4 common patterns of bias that women face at work–and how you can correct them.” I will explain what managers and coworkers can do when they see these four common types of gender discrimination at work.

Feminist Legal Scholar Shares Tips for Fighting Discrimination at Work

Feminist legal scholar Joan C. Williams at the University of California’s Hastings College of Law and her daughter Rachel Dempsey co-authored a book What Works for Women at Work. The publication gives female employees practical solutions to the implicit bias they experience every day at work. According to the book’s summary on Amazon.com:

Often women receive messages that they have only themselves to blame for failing to get ahead—Negotiate more! Stop being such a wimp! Stop being such a witch! What Works for Women at Work tells women it’s not their fault. The simple fact is that office politics often benefits men over women.

Williams and Dempsey interviewed 127 successful working women and put together a toolkit based on 35 years of research in combating established gender norms. The work got the attention of the American Bar Association, which has been addressing the lack of diversity and gender equality in the legal industry. In its article on Williams’s work, the ABA noted:

There’s no shortage of discussion about lack of diversity in the workplace, especially the legal profession. But solutions to the diversity problem and ways to combat implicit bias are harder to come by.

Here four common problems women come up against in the workplace, and some solutions Williams suggests.

Women and Minorities Are Asked to Prove It Again

Women in male-dominated industries are often asked to reestablish their credentials with supervisors in order to get the credit they deserve. Williams labels this “Prove-It-Again.”

What Prove-It-Again Looks Like

An employee being asked to “prove it again” may find her ideas being echoed by, and credited to, others. For example, a woman may recommend a meeting idea, only to have it ignored. But when a man later repeats that idea, it gets action.

How to Fight Back Against Prove-It-Again Bias

If you notice women’s ideas being ignored or attributed to men, give credit where it is due. Williams suggests correcting the gender bias by saying, “I’ve been pondering that ever since Pam first said it.”

Women Walk a Tightrope Between Professionalism and Gender Expectations

Subtle implicit gender bias often influences the assignment of duties. When “women’s work” falls disproportionately on female employees, it causes them to walk a “tightrope” between masculine and professional behaviors and the expectation of what it means to be feminine.

What a Tightrope Situation Looks Like

Tightrope situations happen when women are expected to take on housekeeping and secretarial duties not normally a part of their job descriptions. It could include planning the company party, taking notes during a conference, or cleaning up after a meeting.

How to Fight Back in a Tightrope Situation

To keep these tasks from falling unfairly on women employees, suggest establishing a rotation or assigning these tasks to assistants or support staff. This will make better use of professional women’s time and respect their expertise.

Women Are in a Tug of War Between Their Work and Their Womanhood

When women become identified as a minority, it can make them representatives of their entire sex. This places them in a tug of war between their loyalty to their work and their identity with their gender.

What a Tug of War Looks Like

A “tug of war” often happens when a female employee is called out as a woman and asked “What do women think?” By being made the “token woman” and being asked to speak on behalf of their gender, female employees are forced to put their professional identities aside. They are reduced to the stereotypes of their gender.

How to Fight Back Against Tug of War Situations

Williams encourages managers and co-workers to be on the look out for tokenism. By making sure there isn’t a pattern of placing just one woman on a committee or team, a supervisor can prevent that woman from having to speak for all women in the course of professional debate.

Women Face a Maternal Wall in Advancement

The “maternal wall” puts women in the tough spot of choosing between their families and their careers. When an employer makes decisions about a woman’s commitment based on her children, gender discrimination is a natural result.

What a Maternal Wall Looks Like

When an employer uses family commitments as an excuse not to promote a woman or give her prestigious assignments, it creates a maternal wall. Whenever child care issues or possible impact on an employee’s family is part of an employment decision, it raises red flags.

How to Fight Back Against a Maternal Wall

It can be difficult to fight back against “maternal wall” policies informally. Williams recommends asking “I wonder if we’d say the same thing about a man.”

Family status is a protected class under state and federal employment discrimination lawsuits. If adverse employment decisions are based on a person’s pregnancy, marital status, or the fact that she has children, she may be entitled to file a gender discrimination or pregnancy discrimination claim. Encourage the employee facing the “maternal wall” to talk to an employment discrimination attorney to explore her options in and out of court.

At Eisenberg & Baum, LLP, we know the subtle signs of gender discrimination. We can help coworkers and the victims of discrimination work together to change the culture of their workplace. When that doesn’t work, we can take the matter to court to force employers to treat all their employees based on their credentials, instead of their gender. If you or a coworker are facing gender discrimination at work, contact Eisenberg & Baum, LLP, to schedule a free consultation.

Can I Win My Lawsuit for Workplace Harassment?

/

It’s one thing to feel like you are being harassed at work. It’s another to know you have a winning lawsuit for workplace harassment. Find out what makes a strong case, and what to do if you think you have one.

In this blog I will review what it takes to file a workplace harassment lawsuit. I will explain what makes a claim weak or strong, and how you can prove your case. I will also address how settlement can sometimes get the remedy you need.

Filing a Workplace Harassment Claim

State and federal civil rights laws protect against workplace harassment. If your job is made difficult by supervisors’, coworkers’, or even customers’ comments and behaviors which constitute a hostile workplace or sexual harassment, you may be able to file a lawsuit in federal court.

Sexual Harassment

Sexual harassment may be the most well-known kind of workplace harassment claim. It happens when an employee faces unwelcome sexual advances, requests for sexual favors, or other comments or behaviors that are sexual in nature. It can also include offensive comments about the employee’s sex or gender.

Hostile Work Environment

Even if the offensive behavior has nothing to do with sex, you may still have a workplace harassment claim when circumstances create a hostile work environment. This kind of harassment can be based on race, color, religion, gender, pregnancy, national origin, age, disability, or genetic information. As with sexual harassment, a lawsuit under federal law is only appropriate when it either:

  • Results in an adverse employment decision against you, or
  • Is so constant or severe that a reasonable person would consider it hostile, intimidating, or abusive.

Is the Harassment Bad Enough to Win?

Simple teasing or petty annoyances aren’t enough to create a workplace discrimination lawsuit. So how bad is bad enough to win? The courts will look at:

  • What happened,
  • When it happened,
  • Who was doing it,
  • How frequently it happened.

Generally, actions speak louder than words, and the actions of a person’s supervisor weigh more heavily than those of a coworker or customer. More frequent behavior or comments creates a stronger case than a one-time event. The courts will also consider what your employer did about it when it found out about the behavior.

How Much Can You Prove?

Workplace harassment lawsuits rise and fall on the evidence available. All too often, sexual advances are done behind closed doors, without witnesses. Workplace bullying may make it hard to find anyone to speak up for you. Or you may not know who else saw the offensive email or post. To have a strong case, you and your employment discrimination attorney will need to put together evidence to prove the harassment happened, and it was based on a protected trait (like race or sex). To prove your workplace harassment claim you may be able to present:

  • Documents like emails, text messages, or intraoffice communications that demonstrate bias
  • Testimony of others who experienced similar treatment
  • Testimony of witnesses who saw how you were treated
  • Physical evidence like photos or objects used to harass you
  • Your personal harassment log
  • Your professional evaluations before and after the harassment
  • Internal complaints you filed and any responses
  • Medical records or doctors’ testimony about harm caused by the harassment

The more objective evidence you have, the stronger your case. But even a “he said, she said” lawsuit can sometimes prevail.

What Winning a Workplace Harassment Case Looks Like

In real life, rather than on television, most cases result in a settlement. Rather than fighting for your “day in court” and a big dramatic jury result, you may be able to win the relief you need through a satisfying settlement. Depending on your circumstances, and your needs, a win could include:

  • Money damages
  • Changes in workplace policy
  • Removal of offending coworkers or supervisors
  • Transfers to a different unit or shift
  • Reinstatement to a lost position
  • Injunctions banning future harassment
  • Attorneys’ fees.

Before you push to go to trial, be sure to have a conversation with your lawyer about your needs, your priorities, and what a successful resolution will look like for you.

There Is No Sure Thing

Every workplace harassment case is different. There are facts and circumstances that weigh for and against a plaintiff. There are factors not even listed here that can send your case to the cutting room floor or make it a blockbuster. That’s why nothing can replace a full consultation with an experienced employment discrimination attorney. At Eisenberg & Baum, our lawyers are here to help. We will evaluate your case, and the evidence available, to help you determine if you can win your workplace harassment lawsuit. If you think you have a claim, contact us to schedule a free consultation and find out how strong your case is.