Provided by: Judge Ruth B. Kraft
When an employee believes that he or she has been discriminated against at work because of race, color, religion, sex, pregnancy, national origin, age, disability or genetic information, they can file a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). All of the laws enforced by the EEOC, except the Equal Pay Act, require an employee to file a charge before filing a job discrimination lawsuit.
The employee must bring the charge within 180 days from the day the discrimination took place, or within 300 days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. The filing deadline applies to each incident of alleged discrimination, unless continuing harassment is alleged, in which case the employee must file within 180 or 300 days of the last incident of harassment.
Once the employee files a charge with the EEOC, the employer will receive a notice and copy of the charge within 10 days. Upon receipt of the notice, it is imperative that you retain legal counsel to represent you. At this point, you must make sure that you as well as your employees do not take any adverse action against the employee filing the charge, as retaliation can result in additional liability. The EEOC encourages the use of mediation, at which a mediator will attempt the parties to reach a facilitated settlement. If mediation is not used or is unsuccessful, then the EEOC will investigate the allegation. The length of the investigation will depend on the allegation and the amount of information necessary. Depending on the charge, the EEOC may visit the workplace to interview employees and gather documentation. If you refuse to cooperate, the EEOC can obtain a subpoena requiring you to provide access to company property, obtain documents and compel testimony.
After the conclusion of the investigation, if the EEOC finds a violation, it will attempt to reach a voluntary settlement with you. If settlement negotiations are unsuccessful, it will refer the case to its legal division to file a lawsuit. The EEOC has limited resources and tends to file lawsuits only in very serious cases. If it decides not to sue or has not found a violation, it will send the complaining employee a Notice of Right to Sue, which gives permission to file a lawsuit on his or her own behalf. The employee then has 90 days to file a lawsuit, beginning the normal civil litigation process.
Where a violation is found, the employee may be entitled to reinstatement, promotion or back pay. The employer will also be required to remedy the discriminatory practices and take steps to prevent discrimination in the future. Employees are also eligible to recover attorneys’ fees, expert witness fees and court costs. There are limits to the compensatory and punitive damages that an employee may recover depending on the size of your business:
15-100 employees=$50,000
101-200 employees=$100,000
201-500 employees=$200,000
More than 500 employees=$300,000
For intentional age discrimination or intentional sex-based wage discrimination, while compensatory and punitive damages are not available, the employee may be entitled to liquidated damages equal to the amount of back pay awarded.
The critical thing to remember is to seek legal counsel as soon as you receive the EEOC Charge. You may be able to have the charge dismissed quickly with an attorney’s assistance, which can discourage the employee (as well as his or her prospective attorney) from filing a lawsuit.
Kirschenbaum & Kirschenbaum is a resource to employers with areas of practice including civil litigation and employment law. To schedule a consultation or for assistance in EEOC claim defense, please call Jennifer Kirschenbaum at (516) 747-6700 ext. 302 or email Jennifer@Kirschenbaumesq.com