GUIDE TO FILING A CLAIM WITH THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) or Call (202)

Transcription

1 GUIDE TO FILING A CLAIM WITH THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) Washington, DC Office 1800 K Street NW, Suite 1030 Washington, D.C To schedule a consultation, call (202) Arlington, VA Office 1300 Wilson Boulevard, Suite 320 Arlington, VA To schedule a consultation, call (703) or Call (202)

2 A GUIDE TO FILING A CLAIM WITH THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) INFORMATION CONTAINED IN THE DOCUMENT IS NOT MEANT TO CONSTITUTE LEGAL ADVICE Tully Rinckey PLLC 2011

3 TABLE OF CONTENTS I. WHAT IS THE EEOC?...1 A. OVERVIEW OF PURPOSE...1 B. AUTHORITY OF LAW TITLE VII OF THE CIVIL RIGHTS ACT OF THE PREGNANCY DISCRIMINATION ACT THE EQUAL PAY ACT OF THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF THE AMERICANS WITH DISABILITIES ACT OF CIVIL RIGHTS ACT OF THE REHABILITATION ACT OF THE GENETIC INFORMATION NONDISCRIMINATION ACT OF C. ROLE PLAYED IN DISCRIMINATION CASES...4 II. WHAT KINDS OF ACTIONS CAN THE EEOC HEAR?...5 A. CLASSES OF PERSONS PROTECTED BY THE EEOC...5 B. CLASSES OF PERSONS NOT PROTECTED BY THE EEOC... 5 III. WHAT ARE THE KINDS OF PRACTICES AND POLICIES THAT ARE PROHIBITED BY LAW?...6 A. OVERVIEW OF GENERAL STANDARD...6 B. SPECIFIC EXAMPLES JOB ADVERTISEMENTS RECRUITMENT APPLICATION & HIRING JOB REFERRALS JOB ASSIGNMENTS & PROMOTIONS PAY & BENEFITS DISCIPLINE & DISCHARGE EMPLOYMENT REFERENCES REASONABLE ACCOMMODATION & DISABILITY REASONABLE ACCOMMODATION & RELIGION TRAINING & APPRENTICESHIP PROGRAMS HARASSMENT TERMS & CONDITIONS OF EMPLOYMENT PRE-EMPLOYMENT INQUIRIES DRESS CODE CONSTRUCTIVE DISCHARGE/FORCED TO RESIGN...15 IV. DO I HAVE A CLAIM THAT CAN BE FILED WITH THE EEOC?...15 A. OVERVIEW OF EEOC ENFORCEMENT PROCEDURES PRIVATE SECTOR EMPLOYEES FEDERAL SECTOR EMPLOYEES...17 i

4 3. MEDIATION ONLINE ASSESSMENT SYSTEM...18 V. PRIVATE SECTOR EMPLOYMENT...18 A. WERE YOU DISCRIMINATED AGAINST BY YOUR EMPLOYER? AGE DISABILITY EQUAL PAY & COMPENSATION GENETIC INFORMATION NATIONAL ORIGIN PREGNANCY RACE/COLOR RELIGION RETALIATION GENDER SEXUAL HARASSMENT...26 B. ARE YOU PROTECTED BY THE EEOC? PROTECTED GROUPS UNPROTECTED GROUPS...27 C. IS YOUR EMPLOYER UNDER EEOC JURISDICTION? CRITERIA IS NUMBER OF EMPLOYEES CATEGORIES OF EMPLOYERS...27 i. BUSINESSES/PRIVATE EMPLOYERS...28 ii. STATE OR LOCAL GOVERNMENTS...28 iii. EMPLOYMENT AGENCIES...28 iv. LABOR UNIONS OR APPRENTICESHIP COMMITTEES MEASURING THE NUMBER OF EMPLOYEES...29 D. HOW LONG DO YOU HAVE TO FILE A CLAIM? GENERAL OVERVIEW VARIATION IN TIME LIMITS...30 i. AGE DISCRIMINATION CLAIMS...30 ii. ONGOING DISCRIMINATION...30 iii. MORE THAN ONE DISCRIMINATORY EVENT...30 iv. EQUAL PAY ACT...30 E. WHAT IS THE PROCESS OF FILING YOUR CLAIM? FILING LOCATIONS FILING METHODS REQUIRED DOCUMENTATION DUAL-FILING WITH LOCAL FAIR EMPLOYMENT PRACTICES AGENCY (FEPA) CONFIDENTIALITY OF INFORMATION...33 F. WHAT ARE THE REMEDIES YOU CAN SEEK IN YOUR CLAIM?...33 ii

5 1. GENERAL REMEDIES COMPENSATORY & PUNITIVE DAMAGES AGE OR GENDER DISCRIMINATION AND LIQUIDATED DAMAGES...35 G. WHAT CAN THE EEOC DO AFTER THE CLAIM IS FILED? NOTICE TO EMPLOYER MEDIATION DISMISSAL PRIOR TO INVESTIGATION INVESTIGATION ACTION AFTER INVESTIGATION...36 H. WHAT CAN YOU DO WHILE WAITING FOR A RESULT? CHECKING THE STATUS OF YOUR CLAIM AMENDING YOUR CLAIM UPDATING YOUR INFORMATION REQUESTING A NOTICE OF RIGHT TO SUE...37 VI. FEDERAL SECTOR EMPLOYMENT...38 A. WERE YOU DISCRIMINATED AGAINST BY YOUR FEDERAL EMPLOYER?...38 B. ARE YOU PROTECTED BY THE EEOC?...38 C. IS YOUR FEDERAL EMPLOYER UNDER EEOC JURISDICTION?...38 D. HOW LONG DO YOU HAVE TO FILE A CLAIM?...38 E. WHAT IS THE PROCESS OF FILING YOUR CLAIM? GENERAL OVERVIEW CONTACTING AN EEOC COUNSELOR ALTERNATIVE DISPUTE RESOLUTION (ADR)...39 F. HOW DO YOU FILE A FORMAL COMPLAINT? TIME LIMITATIONS REQUIRED DOCUMENTATION FILING LOCATIONS...41 G. WHAT CAN THE AGENCY DO AFTER THE CLAIM IS FILED? OVERVIEW POSSIBLE DISMISSAL INVESTIGATION VOLUNTARY SETTLEMENT NON-COMPLIANCE WITH THE SETTLEMENT...42 H. REQUESTING A HEARING FROM THE AGENCY TIME LIMITATIONS FILING LOCATIONS PROCEDURE...44 I. AGENCY DECISION (FINAL)...45 J. FILING AN APPEAL OF THE AGENCY S FINAL ORDER TIME LIMITATIONS FILING LOCATIONS...45 iii

6 VII. 3. PROCEDURE POSSIBLE OUTCOMES...46 K. REQUEST FOR RECONSIDERATION OF THE APPEAL DECISION...47 L. FILING A CIVIL LAWSUIT AGAINST THE EMPLOYER...48 REFERENCES...50 iv

7 I. WHAT IS THE EEOC? The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It also protects from discrimination because a person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered. The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits. A. OVERVIEW OF PURPOSE The EEOC s purpose is to ensure a strong and prosperous nation secured through a fair and inclusive workplace. 1 In pursuit of this purpose, the EEOC actively promotes equality of opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. B. AUTHORITY OF LAW The EEOC has the legal authority to investigate charges of discrimination against employers who are covered by the law. Its role in an investigation is to fairly and accurately assess the allegations in the charge and then make a finding. If the EEOC finds that discrimination has occurred, it will try to settle the charge. 2 If those attempts aren't successful, it then has the authority to file a lawsuit to protect the rights of individuals and the interests of the public. The EEOC does not, however, file lawsuits in all cases where it finds discrimination. 3 1

8 The EEOC pursues action against discriminatory employees under the following federal laws. 1. TITLE VII OF THE CIVIL RIGHTS ACT OF This law (Title VII) 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 the person 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. 2. THE PREGNANCY DISCRIMINATION ACT 5 This law (PDA) 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 the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. 3. THE EQUAL PAY ACT OF This law (EPA) 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 the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. 2

9 4. THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF This law (ADEA) protects people who are 40 or older from discrimination because of age. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. 5. THE AMERICANS WITH DISABILITIES ACT OF Title I of this law (ADA) 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 the person 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 limitations 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. 6. CIVIL RIGHTS ACT OF Among other things, sections 102 and 103 of this law (CRA) amends Title VII and the ADA to permit jury trials and compensatory and punitive damage awards in intentional discrimination cases. 7. THE REHABILITATION ACT OF

10 Sections 501 and 505 of this law (RA) 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 the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. The law further requires that employers reasonably accommodate the known physical or mental limitations 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. 8. THE GENETIC INFORMATION NONDISCRIMINATION ACT OF This law (GINA) 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 members, as well as information about any disease, disorder or condition of an individual's family members (i.e. an individual's family medical history). The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. C. ROLE PLAYED IN DISCRIMINATION CASES The EEOC provides leadership and guidance to federal agencies on all aspects of the federal government's equal employment opportunity program. EEOC assures federal agency and department compliance with EEOC regulations, provides technical assistance to federal agencies concerning EEO complaint adjudication, monitors and evaluates federal agencies' affirmative 4

11 employment programs, develops and distributes federal sector educational materials and conducts training for stakeholders, provides guidance and assistance to its Administrative Judges who conduct hearings on EEO complaints, and adjudicates appeals from administrative decisions made by federal agencies on EEO complaints. 12 II. WHAT TYPES OF ACTIONS CAN THE EEOC HEAR? The EEOC protects employees and job applicants from employment discrimination by employers. This includes unfair treatment because of a protected class under the law that you may qualify for. This also includes harassment by managers, co-workers, or others in your workplace, because of your membership in a protected class, denial of a reasonable workplace accommodation that you need because of your religious beliefs or disability, and retaliation because you complained about job discrimination, or assisted with a job discrimination investigation or lawsuit. A. CLASSES OF PERSONS PROTECTED BY THE EEOC The EEOC protects persons from being discriminated against in the contexts listed above, on the basis of their race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. 13 B. CLASSES OF PERSONS NOT PROTECTED BY THE EEOC The EEOC does not enforce laws that prohibit discrimination and harassment based on sexual orientation, status as a parent, marital status, and political affiliation. 14 However, other federal agencies and many states and municipalities do, such as the U.S. Office of Personnel Management (OPM), so you should consult those agencies for more information. 5

12 III. WHAT ARE THE KINDS OF PRACTICES AND POLICIES THAT ARE PROHIBITED BY LAW? A. OVERVIEW OF GENERAL STANDARD As mentioned above, the law essentially forbids discrimination in every aspect of employment. The laws enforced by EEOC prohibit an employer or other covered entity from using neutral employment policies and practices that have a disproportionately negative effect on applicants or employees of a particular race, color, religion, sex (including pregnancy), or national origin, or on an individual with a disability or class of individuals with disabilities, if the polices or practices at issue are not job-related and necessary to the operation of the business. The laws enforced by EEOC also prohibit an employer from using neutral employment policies and practices that have a disproportionately negative impact on applicants or employees age 40 or older, if the policies or practices at issue are not based on a reasonable factor other than age. B. SPECIFIC EXAMPLES Examples of common practices and policies that are prohibited under the law are provided below JOB ADVERTISEMENTS It is illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying for a job because of his or her race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. 6

13 For example, a help-wanted ad that seeks "females" or "recent college graduates" may discourage men and people over 40 from applying and may violate the law RECRUITMENT It is also illegal for an employer to recruit new employees in a way that discriminates against them because of their race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer's reliance on word-of-mouth recruitment by its mostly Hispanic work force may violate the law if the result is that almost all new hires are Hispanic APPLICATION & HIRING It is illegal for an employer to discriminate against a job applicant because of his or her race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer may not refuse to give employment applications to people of a certain race. 18 An employer may also not base hiring decisions on stereotypes and assumptions about a person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. If an employer requires job applicants to take a test, the test must be necessary and related to the job and the employer may not exclude people of a particular race, color, religion, sex (including pregnancy), national origin, or individuals with disabilities. In addition, the employer may not use a test that excludes applicants age 40 or older if the test is not based on a reasonable factor other than age. 19 7

14 If a job applicant with a disability needs an accommodation (such as a sign language interpreter) to apply for a job, the employer is required to provide the accommodation, so long as the accommodation does not cause the employer significant difficulty or expense JOB REFERRALS It is illegal for an employer, employment agency or union to take into account a person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information when making decisions about job referrals. 5. JOB ASSIGNMENTS & PROMOTIONS It is illegal for an employer to make decisions about job assignments and promotions based on an employee's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer may not give preference to employees of a certain race when making shift assignments and may not segregate employees of a particular national origin from other employees or from customers. 21 An employer may not base assignment and promotion decisions on stereotypes and assumptions about a person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. If an employer requires employees to take a test before making decisions about assignments or promotions, the test may not exclude people of a particular race, color, religion, sex (including pregnancy), or national origin, or individuals with disabilities, unless the employer can show that the test is necessary and related to the job. In addition, the employer may not use a test that excludes employees age 40 or older if the test is not based on a reasonable factor other than age. 22 8

15 6. PAY & BENEFITS It is illegal for an employer to discriminate against an employee in the payment of wages or employee benefits on the bases of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Employee benefits include sick and vacation leave, insurance, access to overtime as well as overtime pay, and retirement programs. For example, an employer many not pay Hispanic workers less than African-American workers because of their national origin, and men and women in the same workplace must be given equal pay for equal work. 23 In some situations, an employer may be allowed to reduce some employee benefits for older workers, but only if the cost of providing the reduced benefits is the same as the cost of providing benefits to younger workers. 7. DISCIPLINE & DISCHARGE n employer may not take into account a person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information when making decisions about discipline or discharge. For example, if two employees commit a similar offense, an employer many not discipline them differently because of their race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. 24 When deciding which employees will be laid off, an employer may not choose the oldest workers because of their age. Employers also may not discriminate when deciding which workers to recall after a layoff. 9

16 8. EMPLOYMENT REFERENCES It is illegal for an employer to give a negative or false employment reference (or refuse to give a reference) because of a person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. 9. REASONABLE ACCOMMODATION & DISABILITY The law requires that an employer provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer. A reasonable accommodation is any change in the workplace (or in the ways things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Reasonable accommodation might include, for example, providing a ramp for a wheelchair user or providing a reader or interpreter for a blind or deaf employee or applicant REASONABLE ACCOMMODATION & RELIGION The law requires an employer to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause difficulty or expense for the employer. This means an employer may have to make reasonable adjustments at work that will allow the employee to practice his or her religion, such as allowing an employee to voluntarily swap shifts with a coworker so that he or she can attend religious services TRAINING & APPRENTICESHIP PROGRAMS 10

17 It is illegal for a training or apprenticeship program to discriminate on the bases of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. For example, an employer may not deny training opportunities to African- American employees because of their race. 27 In some situations, an employer may be allowed to set age limits for participation in an apprenticeship program. 12. HARASSMENT It is illegal to harass an employee because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to harass someone because they have complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. 28 Harassment can take the form of slurs, graffiti, offensive or derogatory comments, or other verbal or physical conduct. 29 Sexual harassment (including unwelcome sexual advances, requests for sexual favors, and other conduct of a sexual nature) is also unlawful. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal if it is so frequent or severe that it creates a hostile or offensive 11

18 work environment or if it results in an adverse employment decision (such as the victim being fired or demoted). 30 The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. Harassment outside of the workplace may also be illegal if there is a link with the workplace. For example, if a supervisor harasses an employee while driving the employee to a meeting. 31 The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. 32 If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. 33 The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action. 34 When investigating allegations of harassment, the EEOC looks at the entire record: including the nature of the conduct, and the context in which the alleged incidents occurred. A determination of whether harassment is severe or pervasive enough to be illegal is made on a case-by-case basis. 13. TERMS & CONDITIONS OF EMPLOYMENT 12

19 The law makes it illegal for an employer to make any employment decision because of a person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. That means an employer may not discriminate when it comes to such things as hiring, firing, promotions, and pay. It also means an employer may not discriminate, for example, when granting breaks, approving leave, assigning work stations, or setting any other term or condition of employment - however small PRE-EMPLOYMENT INQUIRIES As a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; whereas, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations. Employers are explicitly prohibited from making pre-employment inquiries about disability. 36 Although state and federal equal opportunity laws do not clearly forbid employers from making pre-employment inquiries that relate to, or disproportionately screen out members based on race, color, sex, national origin, religion, or age, such inquiries may be used as evidence of an employer's intent to discriminate unless the questions asked can be justified by some business purpose. 37 Therefore, inquiries about organizations, clubs, societies, and lodges of which an applicant may be a member or any other questions, which may indicate the applicant's race, sex, national origin, disability status, age, religion, color or ancestry if answered, should generally be avoided. 38 Similarly, employers should not ask for a photograph of an applicant. If needed for 13

20 identification purposes, a photograph may be obtained after an offer of employment is made and accepted. Questions about an applicant's sex, (unless it is a bona fide occupational qualification (BFOQ) and is essential to a particular position or occupation), marital status, pregnancy, medical history of pregnancy, future child bearing plans, number and/or ages of children or dependents, provisions for child care, abortions, birth control, ability to reproduce, and name or address of spouse or children are generally viewed as non job-related and problematic under Title VII. Any pre-employment inquiry in connection with prospective employment expressing or implying limitations or special treatment because of sex (unless based upon BFOQ) or any inquiry made of members of one sex and not the other, is similarly troublesome. 39 If the employer requires all other applicants to undergo background checks before being offered a position, the employer may require members of religious or ethnic groups to undergo the same pre-employment investigations. Of course, as with its other employment practices, the employer may not subject only particular religious or ethnic groups, such as Muslims or Arabs, to heightened security checks. 40 Some employers, such as defense contractors, may require a security clearance for certain jobs pursuant to a federal statute or Executive Order. Clearance determinations must generally be processed and made without regard to race, religion, or national origin. However, security clearance determinations for positions subject to national security requirements under a federal statute or an Executive Order are not generally subject to review under the equal employment opportunity statutes DRESS CODE 14

21 In general, an employer may establish a dress code which applies to all employees or employees within certain job categories. However, there are a few possible exceptions. While an employer may require all workers to follow a uniform dress code even if the dress code conflicts with some workers' ethnic beliefs or practices, a dress code must not treat some employees less favorably because of their national origin. For example, a dress code that prohibits certain kinds of ethnic dress, such as traditional African or East Indian attire, but otherwise permits casual dress would treat some employees less favorably because of their national origin. 42 Moreover, if the dress code conflicts with an employee's religious practices and the employee requests an accommodation, the employer must modify the dress code or permit an exception to the dress code unless doing so would result in undue hardship. Similarly, if an employee requests an accommodation to the dress code because of his disability, the employer must modify the dress code or permit an exception to the dress code, unless doing so would result in undue hardship. 16. CONSTRUCTIVE DISCHARGE/FORCED TO RESIGN Discriminatory practices under the laws EEOC enforces also include constructive discharge or forcing an employee to resign by making the work environment so intolerable a reasonable person would not be able to stay. IV. DO I HAVE A CLAIM THAT CAN BE FILED WITH THE EEOC? If you believe that you have been discriminated against at work, you can file a "Charge of Discrimination" (discussed in detail below) with the EEOC to begin your claim. All of the laws enforced by EEOC, except for the Equal Pay Act, require you to file a Charge of Discrimination 15

22 before you can file a job 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. 43 Not all employers are covered by the laws EEOC enforces, and not all employees are protected. This 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 that you should be aware of. Because of this, we strongly urge you to read the following information to help determine your rights and what action you need to take. A. OVERVIEW OF EEOC ENFORCEMENT PROCEDURES Through its administrative enforcement process, the EEOC receives, investigates, and resolves charges of employment discrimination filed against private sector employers, employment agencies, labor unions, and state and local governments, including charges of systemic discrimination. Where the EEOC does not resolve these charges through conciliation or other informal methods, it may also engage in litigation against private sector employers, employment agencies and labor unions (and against state and local governments in cases alleging age discrimination or equal pay violations) PRIVATE SECTOR EMPLOYEES In FY 2009, the EEOC received 93,277 private sector charges of discrimination. 45 The EEOC also received 2,728 charges through net transfers from state and local Fair Employment Practices Agencies (FEPAs). 46 It achieved 85,980 resolutions, with a merit factor resolution rate of 20.3%. Through the EEOC s administrative enforcement activities, it also secured more than $

23 million in monetary benefits for employees. 47 Overall, the EEOC secured both monetary and non-monetary benefits for more than 17,491 people FEDERAL SECTOR EMPLOYEES In its federal sector enforcement role, the EEOC is responsible for providing hearings and appeals after the initial processing of the complaints by each individual federal agency. Unlike its responsibilities in the private sector, the EEOC does not process complaints of discrimination for federal employees. In the federal sector, individuals file complaints with their own federal agencies and those agencies conduct a full and appropriate investigation of the claims raised in the complaints. Complainants can then request a hearing before an EEOC administrative judge. In FY 2009, the EEOC received a total of 7,277 requests for hearings. 49 Additionally, it resolved a total of 6,779 complaints and secured more than $44.5 million in relief for parties in these complaints. 50 The EEOC also adjudicates appeals of federal agency actions on discrimination complaints and ensures agency compliance with decisions issued on those appeals. During FY 2009, the EEOC received 4,745 requests for appeals of final agency actions in the federal sector MEDIATION In FY 2009, the EEOC's National Mediation Program secured 8,498 resolutions for private sector employees, and obtained more than $121.6 million in monetary benefits for complainants from mediation resolutions. 52 Privet sector employee confidence in the program is high, with FY 17

24 2009 figures reflecting that 96% of all participants would return to EEOC's Mediation Program in the future. 53 The EEOC uses Alternative Dispute Resolution (ADR) techniques to resolve workplace disputes throughout the federal government between federal sector employees and their employing agencies. Data submitted by federal agencies at the close of FY 2008, the most recent data available, indicate that there were 38,898 instances of pre-complaint EEO counseling across the federal government. 54 Of that number, the parties participated in ADR in 19,267 cases, or 49.5% of the time ONLINE ASSESSMENT SYSTEM For your convenience, the EEOC has established an online assessment system, available on its website ( to help you decide if EEOC is the correct agency to assist you in your claim. You can then complete an Intake Questionnaire that you may print and either bring or mail to the appropriate EEOC field office (discussed in detail below) to begin the process of filing a charge. The Online Assessment System is located at the following address: V. PRIVATE SECTOR EMPLOYMENT In order to advance your claim, in the EEOC, of discrimination by a private sector employer, there are several preliminary requirements that must be met. These include actual proof of employment discrimination, qualifying for protected class status under the laws of the EEOC, proving that the EEOC has jurisdiction over your employer, and filing your claim within the statutory time limit and in the proper format. 18

25 A. WERE YOU DISCRIMINATED AGAINST BY YOUR EMPLOYER? In order to prove a successful claim, you must present evidence to the EEOC that your employer discriminated against you on the basis of your status in a protected class. Below are examples of common discriminatory action suffered by individuals in protected classes, and the relevant federal law. 1. AGE Age discrimination involves treating someone (an applicant or employee) less favorably because of his age. The Age Discrimination in Employment Act (ADEA) only forbids age discrimination against people who are age 40 or older. 56 It does not protect workers under the age of 40, although some states do have laws that protect younger workers from age discrimination. 57 It is not illegal for an employer or other covered entity to favor an older worker over a younger one, even if both workers are age 40 or older. 58 Discrimination can occur when the victim and the person who inflicted the discrimination are both over The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. An employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees age 40 or older and is not based on a reasonable factor other than age DISABILITY Disability discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act or the Rehabilitation Act treats a qualified individual with a disability who 19

26 is an employee or applicant unfavorably because she has a disability. 61 Not everyone with a medical condition is protected by the law. 62 In order to be protected, a person must be qualified for the job and have a disability as defined by the law. A person can show that he or she has a disability in one of three ways: I. A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning). II. A person may be disabled if he or she has a history of a disability (such as cancer that is in remission). III. A person may be disabled if he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment). 63 Disability discrimination also occurs when a covered employer or other entity treats an applicant or employee less favorably because she has a history of a disability (such as cancer that is controlled or in remission) or because she is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if she does not have such an impairment). 64 The law also requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer ("undue hardship"). 65 The law also protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability). For example, it is illegal to discriminate against an employee because her husband has a disability EQUAL PAY & COMPENSATION 20

27 The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work. 67 The jobs need not be identical, but they must be substantially equal. Job content (not job titles) determines whether jobs are substantially equal. 68 All forms of pay are covered by this law, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits. If there is an inequality in wages between men and women, employers may not reduce the wages of either sex to equalize their pay. 69 Title VII also makes it illegal to discriminate based on sex in pay and benefits. 70 Therefore, someone who has an Equal Pay Act claim may also have a claim under Title VII. An individual alleging a violation of the EPA may go directly to court and is not required to file an EEOC charge beforehand. 71 The time limit for filing an EPA charge with the EEOC and the time limit for going to court are discussed below. 4. GENETIC INFORMATION Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information. 72 Genetic information includes information about an individual s genetic tests and the genetic tests of an individual s family members, as well as information about the manifestation of a disease or disorder in an individual s family members (i.e. family medical history). 73 Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. Genetic information also includes an individual's request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the 21

28 individual or a family member of the individual, and the genetic information of a fetus carried by and individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology. 74 The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information doesn t tell the employer anything about someone s current ability to work. It is also unlawful for a covered entity to disclose genetic information about applicants, employees or members. Covered entities must keep genetic information confidential and in a separate medical file NATIONAL ORIGIN It is unlawful to harass a person because of his or her national origin. 76 Harassment can include, for example, offensive or derogatory remarks about a person s national origin, accent or ethnicity. 77 Although the law doesn t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. 22

29 National origin discrimination also can involve treating people unfavorably because they are married to (or associated with) a person of a certain national origin or because of their connection with an ethnic organization or group. Discrimination can occur when the victim and the person who inflicted the discrimination are the same national origin. Finally, the law prohibits employers from hiring only U.S. citizens or lawful permanent residents unless required to do so by law, regulation or government contract PREGNANCY It is unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. 79 The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment. If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her the same as any other temporarily disabled employee. For example, the employer may have to provide modified tasks, alternative assignments, disability leave or unpaid leave RACE/COLOR It is unlawful to discriminate against a person because of that person s race or color. 81 Race discrimination involves treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair 23

30 texture, skin color, or certain facial features). 82 Color discrimination involves treating someone unfavorably because of skin color complexion. Race/color discrimination also can involve treating someone unfavorably because the person is married to (or associated with) a person of a certain race or color or because of a person s connection with a race-based organization or group, or an organization or group that is generally associated with people of a certain color. Discrimination can occur when the victim and the person who inflicted the discrimination are the same race or color. The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment RELIGION It is unlawful to discriminate against a person because of that person s religion. 84 The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs. 85 Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion or because of his or her connection with a religious organization or group. It is also illegal to harass a person because of his or her religion. The law requires an employer or other covered entity to reasonably accommodate an employee s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. 86 This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or 24

31 her religion. Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices. 87 Unless it would be an undue hardship on the employer's operation of its business, an employer must reasonably accommodate an employee's religious beliefs or practices. This applies not only to schedule changes or leave for religious observances, but also to such things as dress or grooming practices that an employee has for religious reasons. 88 These might include, for example, wearing particular head coverings or other religious dress (such as a Jewish yarmulke or a Muslim headscarf), or wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard). 89 It also includes an employee's observance of a religious prohibition against wearing certain garments (such as pants or miniskirts). 90 When an employee or applicant needs a dress or grooming accommodation for religious reasons, he should notify the employer that he needs such an accommodation for religious reasons. If the employer reasonably needs more information, the employer and the employee should engage in an interactive process to discuss the request. If it would not pose an undue hardship, the employer must grant the accommodation RETALIATION All of the laws the EEOC enforces make it illegal to fire, demote, harass, or otherwise retaliate against people (applicants or employees) because they filed a charge of discrimination, because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation 25

32 or lawsuit). 92 For example, it is illegal for an employer to refuse to promote an employee because she filed a charge of discrimination with the EEOC, even if EEOC later determined no discrimination occurred GENDER It is unlawful to discriminate against someone because of that person s sex. 94 Sex discrimination also can involve treating someone less favorably because of his or her connection with an organization or group that is generally associated with people of a certain sex. An employment policy or practice that applies to everyone, regardless of sex, can be illegal if it has a negative impact on the employment of people of a certain sex and is not job-related or necessary to the operation of the business. 95 It is unlawful to harass a person because of that person s sex. Harassment can include sexual harassment or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person s sex. For example, it is illegal to harass a woman by making offensive comments about women in general. 96 Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. 97 Although the law doesn t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). 98 The harasser can be the victim's supervisor, a supervisor in 26

33 another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer SEXUAL HARASSMENT Please see V(A)(10) above for information on sexual harassment. B. ARE YOU PROTECTED BY THE EEOC? You may bring a claim to the EEOC alleging discrimination by your employer if you fall into a protected class of individuals. This is called the protected groups. 1. PROTECTED GROUPS You are protected by the EEOC s anti-discrimination laws if you are an employee, a job applicant, a former employee, or an applicant or participant in a training or apprenticeship program. 100 American workers employed by U.S. companies overseas enjoy the same broad protections as workers in the U.S. That means protection under the anti-discrimination laws travels with the employee, so long as the employee is a U.S. citizen working for a U.S. company UNPROTECTED GROUPS Independent contractors are not covered by anti-discrimination laws of the EEOC. 102 Please pay attention to this exception as figuring out whether you are employee of an agency or company or an independent contractor can be tricky. C. IS YOUR EMPLOYER UNDER EEOC JURISDICTION? Once you have figured out whether you fall in a protected group within the EEOC laws and if your employer has indeed discriminated against you in the workplace, you must assess whether 27

34 your employer is under the jurisdiction of the EEOC. This is done by following statutory guidelines. 1. CRITERIA IS NUMBER OF EMPLOYEES An employer must have a certain number of employees to be covered by EEOC laws. 103 This number varies depending on the type of employer (for example, whether the employer is a private company, a state or local government agency, a federal agency, an employment agency, or a labor union) and the kind of discrimination alleged (for example, discrimination based on a person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information). 2. CATEGORIES OF EMPLOYERS It is important to note that if your complaint involves Age Discrimination, the business is covered by EEOC laws only if it has 20 or more employees who worked for the company for at least twenty calendar weeks (in this year or last). 104 On the other hand, virtually all employers are covered by the Equal Pay Act (EPA), which makes it illegal to pay different wages to men and women if they perform substantially equal work in the same workplace. 105 i. BUSINESSES/PRIVATE EMPLOYERS If you have a complaint against a business (or some other private employer) that involves race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information, the business is covered by the EEOC if it has 15 or more employees who worked for the employer for at least twenty calendar weeks (in this year or last). 106 ii. STATE OR LOCAL GOVERNMENTS 28