Tips Every Lawyer Should Know About the EEOC - ABA YLD 101 Practice Series

By T. Scott Kelly

Whether you are representing an employee or an employer, it is likely that you will eventually deal with the United States Equal Employment Opportunity Commission ("EEOC"), an administrative agency that enforces the federal laws prohibiting job discrimination. The following checklist addresses several areas that will provide a basic understanding of the administrative process and can serve as a guide as you deal with the EEOC.

Laws the EEOC Enforces
The EEOC enforces the following federal laws that prohibit job discrimination:

  • Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;
  • the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
  • the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;
  • Title I and Title V of the Americans with Disabilities Act of 1990 (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;
  • Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government; and
  • the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.

EEOC and Systemic Discrimination
It appears that the EEOC is now gearing up to fight systemic discrimination. In April of 2006, the EEOC Commissioners approved a Systemic Discrimination Task Force Report that allows EEOC field offices to undertake systemic discrimination investigations and litigation. "Systemic discrimination" cases have been defined as "pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company or geographical location."

Compliance Manual for Color Discrimination
The EEOC issued its first-ever Compliance Manual for color discrimination on April 19, 2006. Not only will the Manual educate and train field investigators, it will also aid in focusing investigators' attention on systemic discrimination investigation and protection. The manual divides race discrimination into the following eight categories:

  • Ancestry
  • Physical characteristics
  • Race-linked illness
  • Culture
  • Perception
  • Association
  • Subgroup or "Race Plus"
  • Reverse Discrimination.

According to the Manual, color discrimination occurs when a person is discriminated against based on the lightness, darkness or other color characteristic of the person. Therefore, color discrimination can occur between persons of different or the same races and ethnicities.

Time Limits for Filing a Charge of Discrimination
All laws enforced by EEOC, except the Equal Pay Act, require filing a charge of discrimination with EEOC before a private lawsuit may be filed in court. There are strict time limits within which charges must be filed:

  • A charging party has 180 days from the date of the alleged violation to file a charge of discrimination with the EEOC.
  • This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law.
  • It is often difficult to determine when the last alleged discriminatory act or event occurred; however, with discrete actions like hiring, promotion and termination decisions, it is usually easier to document the exact date the alleged decision was made. Complaining parties often use the continuing violation theory to try to circumvent these time requirements.

EEOC Investigation of Charges of Discrimination
The EEOC investigatory process can be minimally or excessively invasive on a company. For instance, at a minimum, the EEOC usually requests that a company provide a written response to a charge of discrimination. More likely than not, the EEOC will request supplemental information to be provided and will even interview people, review documents, and, as needed, visit the facility where the alleged discrimination occurred.

Do not hesitate to object to the EEOC's requests. Many times the EEOC investigators requests are overly broad and are not necessary for the resolution of the charge of discrimination.

After concluding its investigation, the EEOC makes a determination as to whether there is reasonable cause to believe that the alleged discrimination occurred. The EEOC will either determine that it is more likely than not that the discrimination occurred or will determine that there is insufficient evidence to support a finding of discrimination. This determination will be provided as part of a "Notice of Right to Sue," which formally closes the EEOC's handling of the Charge. A complaining party is able to sue no matter what the EEOC determines.

EEOC's Mediation Program
EEOC mediation usually occurs immediately after the charge of discrimination is filed, at the option of the complaining party and the employer. The mediations are confidential and all mediation files are destroyed so members of the investigatory and enforcement units never have access to the information shared during the process.

The EEOC's mediation program has been very successful and presents no costs to either the charging party or the employer. The EEOC's program uses a combination of internal mediators employed by EEOC and external contract mediators. From 1999 through 2003, over 52,400 mediations have been held and more than 35,100 charges, or 69% have been successfully resolved in an average of 85 days.

EEOC's Training Program
The EEOC offers seminars, courses and conferences and have a number of its programs available for review on its website.

While the EEOC Education, Technical Assistance and Training Revolving Fund Act of 1992 authorizes the EEOC to charge reasonable fees to cover the costs of providing training, many offices provide it at no cost. A good time to request training might be during a mediation conducted by the EEOC.

EEO Surveys
Employers with more than 100 employees are required to provide annually workforce data. The EEOC uses the data for a variety of purposes including enforcement, self-assessment by employers, and research.
Private employers are required to file a report named the EEO-1. There are some significant changes to the report 2007 EEO-1 report. Major changes to the EEO-1 include:

  • The current five Race and Ethnic categories will increase to seven.
  • The job category of "Officials and Managers" is now divided into two levels. Revised race/ethnic categories will also be implemented.

Resources

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About the Author

T. Scott Kelly is an associate with Ogletree, Deakins, Nash, Smoak & Stewart, P.C., in its Birmingham, AL office. Mr. Kelly is admitted to practice in Alabama and Georgia. He is an active member of the American Bar Association and is currently serving as Vice-Chair of the Young Lawyers Division Labor and Employment Committee. He is also a member of the Birmingham Bar Association, the Alabama and Georgia Bar Associations and the Defense Research Institute.

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