Even prudent employers will eventually face employment discrimination claims, and have to deal with EEOC representatives. All managers should therefore have a working knowledge of the EEOC claim and enforcement process.
The process consists of these steps:
1) File charge: The process begins with someone filing a claim. Under CRA 1991, the discrimination claim must be filed within 300 days (when there is a similar state law) or 180 days (where there is no similar law) after the alleged incident took place (two years for the Equal Pay Act). The filing must be in writing and under oath, by (or on behalf of) either the aggrieved person or by a member of the EEOC who has reasonable cause to believe that a violation occurred.
2) Charge Acceptance: The EEOC’s common practice is to accept a charge and orally refer it to state or local agency on behalf of the charging party. If the agency waives jurisdiction or cannot obtain a satisfactory solution, the EEOC processes it upon the expiration of the deferral period without requiring the filing of a new charge.
3) Serve Notice: After a charge is filed (or the state or local deferral period has ended), the EEOC has 10 days to serve notice on the employer. Figure summarizes important questions an employer should mask after receiving a bias complaint from the EEOC. They include, for example, “To what protected group does the worker belong?”
4) Investigation / Fact Finding Conference: The EEOC then investigates the charge to determine whether there is reasonable cause to believe it is true; it has 120 days to make this determination. Early in the investigation the EEOC holds an initial fact finding conference – it calls these informal meetings aimed at defining issues and determining if there’s a basis for negotiation. However, the EEOC’s real emphasis here is often on settlement. Its investigators use the conference to find weak spots in each party’s position to use as leverage to push for a settlement.
5) Cause / No Cause: If in the course of the investigation no reasonable cause is found, the EEOC must dismiss the charge, and must issue the charging party a Notice of Right to Sue. The person then has 90 days to file a suit on his or her own behalf.
6) Conciliation: If the EEOC does find cause, it has 30 days to work out a conciliation agreement. The EEOC conciliator meets with the employee to determine what remedy would be satisfactory and then tries to negotiate a settlement with the employer. If both parties accept the remedy, they sign and submit a conciliation agreement to the EEOC for approval. If the EEOC cannot obtain an acceptable conciliation agreement, it may sue the employer in a federal district court. The EEOC is also experimenting with using outside mediators to settle claims in selected cities (more on this in a moment).
7) Notice to Sue: If this conciliation is not satisfactory, the EEOC may bring a civil suit in a federal district court, or issue a Notice of Right to Sue to the person who filed the charge.
The EEOC refers about 10% of its charges to a voluntary mediation mechanism. This is “an informal process in which a neutral third party assists the opposing parties to reach a voluntary, negotiated resolution of a charge of discrimination”. If the plaintiff agrees to mediate, the EEOC asks the employer to participate. A mediation session usually lasts up to four hours. If no agreement is reached or one of the parties rejects participation, the charge is then processed through the EEOC’s usual mechanism.