Employment Law Focus: The EEO Who? A Small Business Primer on the Equal Employment Opportunity Commission

Reposted with Permission from Russ Brown, Attorney at Law, Brown Fox Kizzia & Johnson PLLC

By Russ Brown
February 11, 2014 – Many small to mid-size companies have not encountered a charge of discrimination filed by an applicant, employee, or former employee, and likely know very little about the federal entity that enforces federal employment discrimination laws, the U.S. Equal Employment Opportunity Commission (EEOC).  Provided below is a brief primer on the EEOC, its function, the laws it enforces, and the “Charge” process.

EEOC History & Assignment

The EEOC was created by Title VII of the Civil Rights Act of 1964.  The EEOC is a bipartisan commission, with five presidentially appointed members and one presidentially appointed general counsel.  The agency is headquartered in Washington, D.C. and has 53 field offices, including one located in downtown Dallas, Texas. For almost fifty years the EEOC has enforced federal laws prohibiting employment discrimination.  The EEOC’s tasks include receiving, investigating, and resolving charges of discrimination filed against private employers, employment agencies, labor unions, and state and local governments.  The agency may pursue litigation in federal court, if deemed appropriate.

Although carrying an annual budget below $400 million (relatively small compared to other federal agencies), the agency’s role in the American work environment continues to expand as new laws and executive orders are passed.  In 2013, the EEOC fielded approximately 90,000 charges of discrimination, lower than the peak of +100,000 charges, but still above historical averages.  Further, the EEOC has begun pursuing “systemic” investigations, wherein the EEOC conducts wide probes into business activities of companies allegedly engaging in a pattern of illegal practices.  The agency has great wins and difficult losses sourcing from these “systemic” investigations, and appears prepared to continue this new push through 2014.

Prohibited Activities Enforced by the EEOC

Federal laws prohibit “employer” discrimination based upon:
• Sex
• Race/Color
• Age
• Disability
• Compensation (Equal Pay)
• Harassment
• National Origin
• Religion
• Gender/Sex
• Pregnancy
• Sexual Harassment
• Genetic Information

Additionally, employers are prohibited from retaliating against an employee who has complained or opposes a practice considered to be discriminatory.

Who is an “Employer” Under the Laws Enforced by the EEOC?

It’s important to note that not all “employers” are covered by these laws.

• For race, color, religion, sex, pregnancy, national origin, disability, or genetic information, an “employer” for the purposes of enforcement is an employer with 15 or more employees who worked for the employer for at least 20 calendar weeks in this year or last year.
• For age discrimination, an “employer” for the purposes of enforcement is an employer with 20 or more employees who worked for the employer for at least 20 calendar weeks in this year or last year.
• For the Equal Pay Act, virtually all employers are considered an “employer.”

**Note that State or Local law may approach the definition of “employer” differently.

Employees Must First Pursue “Administrative Remedies” Prior to Filing a Lawsuit

Unlike other arenas of law, an employee cannot simply file a lawsuit based upon discrimination by her employer.  When an employee believes she has been discriminated against by her employer, she must first file a “Charge of Discrimination” with the EEOC within 180 or 300 days, depending upon whether a state law enforces a similar law on the same basis.  (The employee may also file her Charge of Discrimination with applicable local or state agencies, depending upon the circumstances and applicable law.)  The employee then is referred to as the “Charging Party.”  Notably, the EEOC may dismiss an untimely filed charge or a charge filed on grounds not within the EEOC’s jurisdiction.

The EEOC’s Investigation & Handling of the Charge

Upon receipt of an appropriately filed Charge of Discrimination, the EEOC will deliver a copy to the employer.   The charge will arrive by mail and will include the basic charge prepared by the employee and an ultra-brief summary of the allegations.  The EEOC likely will offer the parties an opportunity to mediate the Charge.

An EEOC Investigator will be assigned to the Charge for handling and will ask the employer for a written response to the charge, which often is called the “Position Statement.”  The employer should take this Position Statement seriously, investigate the allegations thoroughly, and timely provide an accurate response.  Throughout the investigation the EEOC may request additional information from both parties and even seek information by subpoena.

The EEOC’s legal staff will assist in determining whether a Charge is to be further pursued by the EEOC through litigation in federal court.  On rare occasions, the EEOC’s legal team may take on a Charging Party’s case and file a lawsuit on the Charging Party’s behalf.

“Right to Sue” Notice: The Exhaustion of Administrative Remedies That Unlocks the Courthouse Doors

In the event the EEOC determines not to pursue the Charge with a lawsuit, it will dismiss the charge of discrimination and issue a “Right to Sue” notice, which will be sent to the Charging Party.  The employer also will receive notice of the dismissal.  The parties should be careful to read into this dismissal, which likely could have been dismissed for reasons beyond the merits of the claim (e.g., the agency’s ability to handle the charge at that time).  Upon dismissal, the courthouse doors open and the Charging Party may now file a lawsuit.  (Notably, after a period of time the Charging Party may request that a Right to Sue notice be issued prior to completion of the EEOC’s investigation.)  Regardless, once the employee receives the Right to Sue notice she has 90 days to file her lawsuit.

Key Consideration

In the event you are concerned regarding company practices, or your company has been accused of discrimination, contact an attorney focused on employment law as soon as possible.  An employment attorney can help you navigate through the charge process, any necessary investigation, preparation of position statement, and if necessary, later litigation and trial.

For more information regarding the EEOC, visit www.eeoc.gov.

About Russ Brown
Russ Brown is a founding partner and currently serves as the firm’s Managing Partner.  Russ also chairs the Firm’s Labor & Employment practice group and focuses his practice on assisting executives with employment contract disputes and negotiations and representing employers with their labor and employment needs. If you would like to learn how Russ or Brown Fox can assist you, contact Russ at 214.613.3355 or russ@brownfoxlaw.com
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