4. How are employment discrimination actions under the Title VII enforced?
The Civil Rights Act of 1964 established the Equal Employment Opportunity Commission (EEOC). The EEOC is charged with interpreting and enforcing the provisions of Title VII and numerous other employment laws (including the ADA, ADEA, Equal Payment Act, and sections of the Rehabilitation Act). The EEOC’s enforcement procedures are as follows:
• Filing a Charge – An employee alleging a violation of Title VII must file a complaint with the EEOC within 180 days of the alleged discriminatory conduct.
⁃ Note: If the employee elects to file a state-law action with the relevant state agency, the state filing may toll the statute of limitations for filing the federal discrimination action.
• Review by Investigator – The EEOC will notify the employer of the complaint and assign an investigator to the case to determine whether there is a reasonable belief that discrimination occurred. The alleged offender will provide a response, known as a “position statement”, to the EEOC. Based upon the initial inquiry and response by the employer, the EEOC may proceed with the investigation or summarily dismiss the complaint for failing to make any showing of discriminatory conduct.
⁃ Note: The EEOC determination on this point is based largely on evidence presented by the employee and the documentation provided by the employer. Documentation supporting the employer’s action may include any manager’s report, counseling statements, or affidavits of witnesses to the action taken.
• Negotiation & Mediation – Parties (the employer and employee) are generally free to negotiate a settlement of the claim prior to disposition by the EEOC. However, a settlement between the parties does not prohibit the EEOC from continuing an inquiry or initiating an investigation of an alleged violation. In some cases, the EEOC will offer assistance with the mediation process.
⁃ Note: The EEOC will generally only continue an inquiry following a settlement when the employer practices are particularly egregious or likely to be repeated.
• Investigation – The EEOC investigator will collect extensive information about the situation from the employer and employee, conduct interviews, etc. This investigation will drive the EEOC’s determination in disposing of the complaint.
⁃ Note: Employers are not legally compelled to comply with investigation demands; however, failure to comply with the investigation process can result in negative administrative finding against that party.
• Determination – Once the investigation concludes, the EEOC will make a determination of the merits of the complaint. The options for determination are as follows:
⁃ Dismissal and Notice of Rights – If the EEOC does not find reasonable cause to believe that there was discrimination, it will issue a “Dismissal and Notice of Rights” letter. This notice tells the employee the conclusions of the investigation and that the EEOC will take no action on the matter. The notice does, however, inform the employee that she can file an action against the employer in federal court within 90 days.
⁃ Note: The dismissal and notice of rights generally indicates that there is little merit to the complaint. Employees who proceed to file a legal action often see the complaint summarily dismissed.
⁃ Letter of Determination – If the EEOC does find reasonable cause to believe that there was discrimination, the EEOC issues a “Letter of Determination”. This letter informs employer and employee of the EEOC’s findings and invites the parties to undergo a form of mediation to resolve the issue. This mediation process is known as a “conciliation”. The conciliation is not binding on the parties, and either party may reject the results of a conciliation.
⁃ Note: Most businesses, rather than risk a civil trial on the allegations, are willing to take part in the conciliation process.
⁃ Notice of Right to Sue – If conciliation is ineffective, the EEOC has authority to bring an action against the employer for the discriminatory conduct. In determining whether to sue on behalf of the employee, the EEOC will consider: the seriousness of the violation, the type of legal issues in the case, the wider impact the lawsuit could have on the agency’s efforts to combat workplace discrimination, and the resources available to litigate the case effectively. If the EEOC does not sue, the employee will receive a “Notice of Right to Sue” and may file an action in federal court within 90 days of the determination.
⁃ Note: If a party cannot afford an attorney, the EEOC may appoint an attorney to represent the employee.
Per the 1991 Amendments to Title VII, an employee may recover compensatory damages suffered as a result of the discriminatory conduct. If the conduct is intentional, the employee may recover punitive damages of up to $300,000 per individual subject to discrimination.
• Discussion: How do you feel about the EEOC enforcement process? Do you think that this process offers sufficient protections to employees? Why or why not? Can you think of any modifications to this process that may offer greater protections? Do you think individuals should be able to sue an employer directly without first exhausting the EEOC administrative process?
• Practice Question: Derek applies for a position at ABC Corp. He believes that the manager who interviewed him was biased against him because of his religion. If Derek decides to bring a legal action against ABC Corp for legal discrimination, what is the process that he must follow to do so?