EEOC Overview - Bob McComas
by Bob McComas, BOL Guru
What is EEOC?
- The Equal Employment Opportunity Commission is an independent federal agency created by Congress in 1964 to eradicate discrimination in employment. The various statutes enforced by the Commission prohibit employment discrimination on the basis of race, color, sex, national origin, religion, retaliation, age and disability.
- EEOC has authority to receive, initiate and investigate charges of discrimination filed against employers who have a statutory minimum number of employees.
- EEOC's role in an investigation is to fairly and accurately evaluate the charge allegations in light of all the evidence obtained.
What employment areas does EEOC enforce?
- Sexual Harassment
- Equal Pay and Compensation Discrimination (applies to all employers)
- Race/Color Discrimination
- Age Discrimination (applies to employers with 20 or more employees)
- National Origin Discrimination
- Pregnancy Discrimination
- Religious Discrimination
- The Americans with Disabilities Act
What happens when a charge has been filed against?
- The employer will always be notified that a charge of discrimination has been filed and the employer will be provided with the name and contact information for the investigator assigned to the case. A charge does not constitute a finding that that company engaged in discrimination. The EEOC has a responsibility to investigate and determine whether there is a reasonable cause to believe discrimination occurred.
- In many cases, the employer may opt to resolve a charge early in the process through mediation or settlement. At the start of an investigation, EEOC will advise the employer if the charge is eligible for mediation, but the employer is feel free to ask the investigator about the settlement option. Mediation and settlement are voluntary resolutions.
- During the investigation, the employer and the Charging Party will be asked to provide information. The EEOC investigator will evaluate the information submitted to determine whether unlawful discrimination has taken place. The employer may be asked to:
- submit a statement of position. This is the employerr opportunity to tell the employerr side of the story and the employer should take advantage of it.
- respond to a Request for Information (RFI). The RFI may ask the employer to submit copies of personnel policies, Charging Party's personnel files, the personnel files of other individuals and other relevant information.
- permit an on-site visit. While the employer may view such a visit as being disruptive to the employerr operations, our experience has been that such visits greatly expedite the fact- finding process and may help achieve quicker resolutions. In some cases, an on- site visit may be an alternative to a RFI if requested documents are made available for viewing or photocopying.
- provide contact information for or have employees available for witness interviews. The employer may be present during interviews with management personnel, but an investigator is allowed to conduct interviews of non-management level employees without the employerr presence or permission.
- If the charge was not dismissed by the EEOC when it was received, that means there was some basis for proceeding with further investigation. There are many cases where it is unclear whether discrimination may have occurred and an investigation is necessary. The employer is encouraged to present any facts that the employer believes show the allegations are incorrect or do not amount to a violation of the law. An employer's input and cooperation will assist EEOC in promptly and thoroughly investigating a charge.
- Work with the investigator to identify the most efficient and least burdensome way to gather relevant evidence.
- The employer should submit a prompt response to the EEOC and provide the information requested, even if the employer believes the charge is frivolous.
- If there are extenuating circumstances preventing a timely response from the employer, contact the employerr investigator to work out a new due date for the information.
- Provide complete and accurate information in response to requests from the investigator.
- The average time it takes to process an EEOC investigation is about 182 days.
- Experience shows that undue delay in responding to requests for information extends the time it takes to complete an investigation.
- If the employer has concerns regarding the scope of the information being sought, advise the investigator. Although EEOC is entitled to all information relevant to the allegations contained in the charge, and has the authority to subpoena such information, in some instances, the information request may be modified.
- Keep relevant documents. If the employer is unsure whether a document is needed, ask the investigator. By law, the employer is required to keep certain documents for a set period of time.
- The EEOC investigator will:
- be available to answer most questions the employer have about the process.
- keep the employer informed about the charge process, including the rights and responsibilities of the parties at the conclusion of the investigation.
- conduct an appropriate, thorough and timely investigation.
- allow the employer to respond to the allegations.
- inform the employer of the outcome of the investigation.
- Once the investigator has completed the investigation, EEOC will make a determination on the merits of the charge.
- If EEOC determines that there is no reasonable cause to believe that discrimination occurred, the charging party will be issued a letter called a Dismissal and Notice of Rights that tells the charging party s/he has the right to file a lawsuit in federal court within 90 days from the date of receipt of the letter. The employer will also receive a copy of this document.
- If EEOC determines there is reasonable cause to believe discrimination has occurred, both parties will be issued a Letter of Determination stating that there is reason to believe that discrimination occurred and inviting the parties to join the agency in seeking to resolve the charge, through an informal process known as conciliation.
- Where conciliation fails, EEOC has the authority to enforce violations of its statutes by filing a lawsuit in federal court. If the EEOC decides not to litigate, the charging party will receive a Notice of Right to Sue and may file a lawsuit in federal court within 90 days.
How does a charge get resolved?
EEOC offers employers many opportunities to resolve charges of discrimination. Successfully resolving the case through one of these voluntary processes may save the employer time, effort and money. Methods of resolution include:
EEOC has greatly expanded it's mediation program. The program is free, quick, voluntary and confidential. If mediation is successful, there is no investigation.
If the charge filed against the employer is eligible for mediation, the employer will be invited to take part in the mediation process. If mediation is unsuccessful, the charge is referred for investigation.
Advantages of Mediation
- EEOC's mediation program is free.
- Mediation is efficient. The process is initiated before an investigation begins and most mediations are completed in one session, which usually lasts for one to five hours.
- The average processing time for mediation is 84 days.
- The mediation program is completely voluntary.
- Successful mediation results in the closure of the charge filed with EEOC. If mediation is unsuccessful, the charge is referred for investigation.
- Mediators are neutral third parties who have no interest in the outcome of the mediation.
- Mediation is a confidential process. The sessions are not tape-recorded or transcribed. Mediator notes taken during the mediation are discarded. Information learned during the mediation can not be used during an EEOC investigation if the mediation is unsuccessful.
- Mediation is an informal process. The goal of mediation is not fact finding. The purpose is to discuss the charge and reach an agreement that is satisfactory to all parties.
- Settlement agreements secured during mediation are not admissions by the employer of any violation of laws enforced by the EEOC.
- Mediation avoids lengthy and unnecessary litigation.
- Settlement agreements secured during mediation are enforceable.
- The overwhelming majority of employers and charging parties participating in EEOC mediation program are satisfied with the process and would use it again.
- Mediation can help the parties understand why the employment relationship broke down.
- Mediation can help the parties identify ways to repair an ongoing relationship.
Charges of discrimination may be settled at any time during the investigation. EEOC investigators are experienced in working with the parties to reach satisfactory settlements. The employer should contact the investigator if the employer are interested in resolving the employerr charge through settlement.
Advantages of Settlement
- Voluntary settlement efforts can be pursued at any time during the investigation, but settling a charge early may save the employer the time and effort associated with investigations.
- Settlement is an informal process. The goal of settlement is to reach an agreement that is satisfactory to all parties.
- There is no admission of liability.
- If the parties, including EEOC, reach a voluntary agreement, the charge will be dismissed.
- Settlement agreements are enforceable.
- Settlement avoids lengthy and unnecessary litigation.
EEOC is statutorily required to attempt to resolve findings of discrimination through "informal methods of conference, conciliation, and persuasion." After the parties have been informed by letter that the evidence gathered during the investigation establishes that there is "reasonable cause" to believe that discrimination has occurred, the parties will be invited to participate in conciliation discussions. During conciliation, the employerr investigator will work with the employer and the Charging Party to develop an appropriate remedy for the discrimination. We encourage the employer to take advantage of this final opportunity to resolve the charge prior to EEOC considering the matter for litigation.
Advantages of Conciliation
- Conciliation is a voluntary process.
- Conciliation discussions are negotiations and counter-offers may be presented.
- Conciliation offers the parties a final opportunity to resolve the charge informally - - after an investigation has been conducted, but before a litigation decision has been reached.
- Conciliation agreements remove the uncertainty, cost and animosity surrounding litigation.
Racial discrimination continues to head the list of the most frequent charges filed with the U. S. Equal Employment Opportunity Commission, according to recently released statistics for fiscal year 2002. Of the 84,442 charge filings with the EEOC in FY 2002, the biggest increases from the prior year were in allegations of religious discrimination.
The Commission resolved 95,222 private sector charge filings in FY 2002 - up 6% from the previous year - and recovered a record total of $310.5 million in monetary benefits for charging parties through settlements, conciliation, mediation, and litigation. One out of every five charges filed with the agency resulted in a "merit resolution" with a favorable outcome for the charging party. The industries that generated the most charge activity include retail, food services, and manufacturing.
During FY 2002, EEOC offices conducted more than 4,000 outreach, education, and technical assistance events nationwide to promote voluntary compliance - up 24% from FY 2001. Under the voluntary mediation program, the EEOC resolved a record-high 7,858 charges in an average time of 82 days - less than half the time it takes through the administrative process.
The total EEOC charge filings for 2002 are as follows:
- 29,910 alleged race discrimination - 35% - (up 3.5% from FY 2001)
- 25,536 alleged sex/gender discrimination - 30% -(up 1.6% from FY 2001)
- 22,768 alleged retaliation- 27% - (up 2% from FY 2001)
- 19,921 alleged age discrimination - 24% - (up 14.5% from FY 2001)
- 15,964 alleged disability discrimination - 19% - (down 3% from FY 2001)
- 9,046 alleged national origin discrimination - 11% -(up 13% from FY 2001)
- 2,572 alleged religious discrimination - 11% -(up 21% from FY 2001)
- 1,256 alleged Equal Pay Act violations - 3% -(unchanged from FY 2001)
(Note: Individuals may allege multiple types of discrimination in one charge filing.)
First published on BankersOnline.com 3/8/04 -->
First published on 03/08/2004