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By Yuri Han
Junior Attorney
  1. Receiving an EEOC charge does not mean your company violated the law.

Your company may receive from the Equal Employment Opportunity Commission (“EEOC”) a notice of charge of discrimination. However, this does not mean that your company has violated the laws that EEOC enforces. 

  1. Overview of EEOC’s role and statutes it enforces.

EEOC is an administrative agency established to investigate and enforce federal laws that make it illegal to discriminate against someone based on protected rights. The following are some of the statutes enforced by EEOC:

  1. Title VII of the Civil Rights Act of 1964 

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination and harassment against someone based on race, color, religion, national origin, or sex (including pregnancy, sexual orientation, and gender identity) by a covered employer. I

  1. Race/Color discrimination

“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 texture, skin color, or certain facial features). 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.

Discrimination can occur when the victim and the person who inflicted the discrimination are the same race or color.”II

  1. Religious discrimination

“Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs. 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.

Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion.”III

  1. National origin discrimination

“National origin discrimination involves treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).

National origin discrimination also can involve treating people unfavorably because they are married to (or associated with) a person of a certain national origin.

Discrimination can occur when the victim and the person who inflicted the discrimination are the same national origin.”IV

  1. Sex discrimination

“Sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person’s sex, including the person’s sexual orientation, gender identity, or pregnancy.

Discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII.”V

  1. The Pregnant Workers Fairness Act of 2022

            The Pregnant Workers Fairness Act of 2022 (“PWFA”) requires a covered employer to make reasonable accommodations for the known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation imposes an undue hardship on your business.VI

“Reasonable accommodations” are making changes to the work environment, including but not limited to, giving additional break time to use the bathroom, eat, and rest, providing leave or time off to recover from childbirth, allowing being excused from strenuous activities, and/or exposure to chemicals not safe for pregnancy, providing closer parking, and giving properly sized uniforms.VII

  1. The Age Discrimination in Employment Act of 1967 

The Age Discrimination in Employment Act of 1967 (“ADEA”) prohibits a covered employer from treating someone differently based on him or her being age 40 or older.VIII

  1. Title I of the Americans with Disabilities Act of 1990 

Title I of the Americans with Disabilities Act of 1990 (“ADA”) law prohibits a covered employer from discriminating against someone based on disability in the workplace.IX

  1. An EEOC charge, position statement, and mediation

An EEOC notice will outline allegations made against your company, the deadline to provide your position statement, and login information for you to register to EEOC’s respondent portal. 

  1. An EEOC charge file is transferred to the mediation unit if both parties agree to mediate. 

Usually, a position statement deadline will be suspended if both sides agree to mediate. A charge file will only be transferred to a mediation unit if both a charging party and an employer indicate their willingness to participate in a mediation. If not, a charge file will remain with an EEOC investigator, and it may take about 10 months to investigate a charge. As such, you will be encouraged to mediate and settle a charge sooner, given the high cost of legal services. Moreover, it would be beneficial for you to focus your energy on business growth.

  1. Deciding to mediate or submit a position statement

Even if resolving a charge through mediation is recommended, you first need to assess whether a claim filed against your company has been timely filed and whether your company is considered a covered employer by federal anti-discrimination statutes. If a claim was not timely charged or you are not considered a covered employer under applicable federal anti-discrimination statutes, you should submit your position statement explaining such a situation and requesting that a charge be dismissed.

  1. Timely filed

An EEOC charge must be filed within 180 days from the date of the alleged violation. However, the deadline may be extended to 300 days if a violation is covered by a state anti-discrimination law as well.

  1. Covered employer

Depending on a charge and the number of your employees, EEOC may not have jurisdictional power to enforce federal anti-law against your company. This is because an employer must have a certain number of employees to be considered a covered employer under applicable federal statutes. Employees include people who work full-time, part-time, seasonal, or on a temporary basis, individuals who are not citizens, and even volunteers in some casesX. The number of required employees depends on the kind of discrimination alleged and applicable statutes:

  1. Covered employer under Title VII

Under Title VII, you would be considered a covered employer if your company engages in an industry affecting commerce and has 15 or more employees for a working day in each of 20 or more calendar weeks in the current or preceding calendar year.XI

  1. Covered employer under PWFA

Like Title VII, under PWFA, you would be considered a covered employer if your company engages in an industry affecting commerce and has 15 or more employees for a working day in each of 20 or more calendar weeks in the current or preceding calendar year.XII

  1. Covered employer under ADEA

ADEA applies if your company is engaged in an industry affecting commerce and has 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. XIII

  1. Covered employer under ADA

ADA applies if your company is engaged in an industry affecting commerce and has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.XIV

  1. EEOC investigation and pending deadlines will be paused if a charge file is moved to the mediation department.

Provided that both the charging party and the employer agree to participate in a mediation, an investigation and any pending deadlines will be paused. 

  1. EEOC Mediation process and overview

Mediation through EEOC is a completely confidential and free process. Both parties would be required to sign a confidentiality agreement and agree to participate in mediation in good faith. A mediation session will typically last between 4 to 6 hours. Mediation is not a court hearing or process, and a mediator does not determine which side is at fault. An assigned mediator is neutral and ensures both parties can express their point of view. If a mediation is successful, a settlement agreement will be drafted and signed by you, a charging party, and EEOC. Thereafter, EEOC will not proceed with an investigation and a charge against you will be dismissed.

  1.  Unsuccessful mediation and continuation of EEOC investigation 

If mediation is unsuccessful, a charge will be transferred back to EEOC investigation unit, and an investigation will resume. In such a case, you will need to submit a position statement (as indicated earlier, if either party refuses to mediate, you will need to submit a position statement). Your position statement should focus on the fact that the alleged violation was justified. For example, if a former employee brings a charge against your company for a discriminatory practice in his or her dismissal from a job, your position statement should indicate that dismissal was due to non-discriminatory reasons (e.g., a former employee’s lack of productivity, poor quality of work, dishonesty, poor attendance, etc.). 

When an investigation resume, you are expected to provide complete and accurate information on inquiries made by EEOC’s investigator. Even if you believe the charge should not have been brought in the first place, you should comply with EEOC and try to provide requested documents, comply with the interview requests, and an on-site inspection as needed.

 On average, an investigation takes about 10 months. EEOC will decide on the merits of a charge. If EEOC is unable to identify evidence supporting a charge of discrimination, EEOC will issue a “dismissal and notice of rights” to a charging party. This informs a charging party that he or she has a right to file a lawsuit within 90 days from the date of the receipt of such notice. 

Alternatively, EEOC may determine that a reasonable cause exists for discrimination and both parties may be invited to participate in voluntary conciliation. If conciliation is successful, a matter will be resolved. If not, EEOC may file a lawsuit on behalf of a charging party against you. XV

  1. Good employer defense attorneys are needed to effectively represent your company throughout EEOC process.

If your company has currently been notified of an EEOC charge and may face a lawsuit from an employee, former employee, or a job applicant, we are here to help.

Footnotes

  1.  42 U.S.C. §§ 2000e – 2000e-17 
  2. https://www.eeoc.gov/racecolor-discrimination
  3. https://www.eeoc.gov/religious-discrimination
  4. https://www.eeoc.gov/national-origin-discrimination
  5. https://www.eeoc.gov/sex-based-discrimination
  6.  42 U.S.C.S. §§ 2000gg-2000gg-6
  7. https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act
  8.   29 U.S.C §§ 621-634
  9.  42 U.S.C. §§ 12101-12213 
  10. Htttps://www.eeoc.gov/employers/small-business/who-employee-under-federal-employment-discrimination-laws#:~:text=Employees%20include%3A,Volunteers%2C%20in%20some%20cases%3B%20and
  11. 42 U.S.C. §§ 2000e(b)
  12. 42 U.S.C.S. § 2000gg(2)(B)(i)
  13. 29 U.S.C. § 630(b)
  14.   42 U.S.C.S. § 12111(5)(A)
  15. https://www.eeoc.gov/employers/what-you-can-expect-after-charge-filed
About the Author
Upon receiving a Bachelor of Arts in Political Science and International Relations from the Ohio State University, Yuri decided to pursue her law degree. Thereafter, she attended the Baylor University Law School. Yuri was raised in South Korea and speaks fluent Korean.