You will be notified by the EEOC if you have been charged with a discrimination violation and there is some basis to believe that a violation has occurred. A representative will be assigned and the commission will start an investigation. The average claim takes about 182 days from start to finish. Many cases are eligible for early resolution through mediation or settlement.
A mediation program is facilitated by an unbiased, third-party mediator in a confidential setting that usually lasts about eighty-four days from start to finish. The meetings are not tape recorded and notes taken by the mediator are discarded. Employer settlement agreements are not considered an admittance of a violation. The program is voluntary and, if successful, will result in the charge being closed. If unsuccessful, the next step will be the start of an investigation.
You may be asked to tell your side of the story through a Statement of Position and to respond to a Request for Information (RFI). This may include the submission of copies of personnel files and policies. An on-site visit may be scheduled and the EEOC investigator may question witnesses.
Provide the EEOC with a prompt response and cooperate with the investigation even if you believe that a charge is frivolous. If you question the need for some of the requested information, advise the investigator. The EEOC has the right to subpoena the information needed but may modify the request in some cases.
If the investigation concludes that there is no reasonable basis to believe that discrimination has occurred, the charging party will receive a Dismissal and Notice of Rights letter. This will tell him that he has a right to file a lawsuit in federal court within ninety days of receipt. The employer will receive a copy of the letter.
A Letter of Determination will be sent to both parties if there is reasonable cause to believe that discrimination did occur. The charging party and the employer will both be invited to seek resolution of the charge through an informal process known as conciliation. It the conciliation is unsuccessful, the EEOC may file a lawsuit in federal court if it so chooses. If not, the charging party will receive a Notice of Right to Sue and may file a lawsuit in federal court within ninety days. This is different than the Dismissal and Notice of Right to Sue letter mentioned earlier in this chapter because at this point, there has been no dismissal by the EEOC.
A conciliation meeting is a discussion between an investigator, the charging party, and the employer to negotiate a solution for the discrimination. This is a voluntary procedure to resolve a charge informally. One of the benefits is that it avoids future litigation that can be time-consuming and costly.
If the conciliation concludes that discrimination has occurred, there are remedies available to the charging party. If the employee was wrongfully terminated or compelled to resign due to the discrimination, he may be entitled to back pay or reinstatement.
Is a charging party who is reinstated protected from retaliation?
The same laws that prohibit discrimination also prohibit retaliation against persons who report unlawful discrimination or participate in an employment discrimination determination. Employment terminations, unjustified negative performance evaluations, threats, increased surveillance, and the denial of a promotion are a few examples of perceived retaliation.
Reinstatement may include giving the employee seniority or a pay raise that he may have missed during the period from filing the claim to resolution. If an applicant was not hired for a position due to discriminatory reasons, the resolution could be that he is hired. A person discriminated against because of a qualified disability may be offered a reasonable accommodation in order to perform the job. See Chapter 13 for more about reasonable accommodations to avoid this type of EEOC charge.
A finding that discrimination has occurred can be very costly to employers. The charge could result in reimbursement to the charging party for monetary losses, as well as compensation for mental anguish and inconvenience. Charges for punitive damages may be awarded if the employer acted maliciously. Lastly, the employer may be responsible for paying the charging party's attorney fees, court costs, and fees paid to expert witnesses.
All employers should avoid discriminating against applicants and employees regardless of whether or not protection is provided. Some employers, generally only very small ones, are not covered by all of the statutes. Employers with fifteen or more employees must comply with Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, pregnancy, or national origin. The act also prohibits sexual harassment.
Employers with fifteen or more employees are also covered by the Americans with Disabilities Act (ADA). However, only employers with twenty or more employees are covered by the Age Discrimination in Employment Act (ADEA). Virtually all employers are covered by the Equal Pay Act (EPA), which applies to employers with employees covered by federal wage and hour laws.
Discriminatory Protection Acts
Protection against all areas of discrimination is provided for both job applicants and employees and applies to hiring, separation, promotion, layoff, compensation, benefits, job assignments, and training practices. Additionally, discrimination against individuals who are married to or associated with those of a protected class is also covered.
All hiring and employment practices are to be based on skills and qualifications for the essential duties of the job without regard to race, sex, color, age, religion, national origin, or medical conditions. This means that a manager cannot give preferential treatment to a specific race of people when selecting a new employee, nor can he disqualify a person based on race or pass them up for a promotion if they are the most qualified person. A person's religious preference has no bearing on the hiring process, nor does national origin.
Persons forty years of age or older are protected against discrimination by the Age Discrimination in Employment Act of 1967 (ADEA). Only in very rare circumstances can an age preference or limitation be specified in an advertisement or posting for employment.
Men and women must receive equal compensation for equal work performed at the same work site in accordance with the Equal Pay Act. The jobs must be substantially similar in terms of content, and the title is irrelevant. This means that an employee cannot be given an enhanced title while doing the same work as a way to rationalize giving a higher salary.
There may be an exception to the equal pay rule if one person has been employed longer than the other and has passed a timeframe in which a pay increase is awarded. The company's policies for pay increases will be a determining factor in this rule.
If the skill, effort, and responsibility required to perform a job is the same, one gender may not be paid more than another under similar working conditions. The skill needed to perform a job is determined by the experience, ability, education, and training required for doing a job. If one person has a credential that is not part of the required skills, he cannot be paid a higher salary. Effort is measured by the physical or mental exertion needed to perform a job. Working conditions play a role in salary determination also, and exposure to extreme temperatures or hazardous conditions can warrant a pay differential as well.
If one person has a higher amount of responsibility than another, this person may be paid a higher wage than the other. An example would be two people who work as customer-service-center representatives. If one person handles calls about product information and placing orders and another person is assigned to the calls for complaints and resolutions, the second person has a higher level of responsibility and may be paid more. Ideally, his position title will change to reflect the different duties, which may be considered substantial.