The Equal Employment Opportunity Commission is a federal agency composed of five members, each of whom is appointed for a five-year term by the President. The Equal Employment Opportunity Commission is required to monitor compliance with and enforce Title VII and the Americans with Disabilities Act, two of the principal federal civil rights laws. To administer its responsibilities, persons alleging that an employer, an employment agency, or a labor organization has engaged in an unlawful employment practice file with the office.
Form and Service of Charges:
In most cases, the Equal Employment Opportunity Commission is extremely open-minded in accepting charges. Therefore, most charges contain little factual information or detail and are based upon sweeping allegations and conclusions.
The Equal Employment Opportunity Commission is required to serve a notice of the charge on the employer or entity alleged to have violated Title VII within 10 days after the charge is filed. The notice of the charge must include the date, place, and circumstances of the unlawful practice that is alleged, and must be in a form that complies with Equal Employment Opportunity Commission requirements.
Function of Investigation:
The Equal Employment Opportunity Commission is required to investigate charges that are filed. In such an investigation, the office’s mission is to ascertain whether there is “reasonable cause” to believe that the charge is true. If the Equal Employment Opportunity Commission determines after investigation that there is not reasonable cause to believe that the charge is true, it must dismiss the charge and promptly notify the charging party and the accused employer of its action.
On the other hand, if the Equal Employment Opportunity Commission concludes that reasonable cause exists to believe that the charge is true, it must endeavor to eliminate the unlawful practice “by informal methods of conference, conciliation, and persuasion.
The Equal Employment Opportunity Commission is sometimes precluded from taking action for a period during which it must defer to the California Department of Employment and Fair Housing.
Interrelationship of Title VII Limitations Period With State Law:
Many federal laws are designed to occupy the entire field that they attempt to regulate and therefore operate to displace or “preempt” State laws intended to govern the same practices. In contrast, Title VII specifically authorizes State fair employment practice laws, provided that they do not require or permit acts that would violate Title VII.
Title VII establishes special rules that apply in states, such as California, which have enacted their own employment discrimination laws. These rules apply to discrimination charges that challenge employment practices that are prohibited by Title VII and the Fair Employment and Housing Act. The rules create limitations both on how soon and how late a charge may be filed with the Equal Employment Opportunity Commission alleging violations of Title VII.
- First, the California Department of Employment and Fair Housing has the exclusive right to process allegations of discrimination over which it has subject matter jurisdiction for the first 60 days. Therefore, a charge technically cannot be actively processed by the Equal Employment Opportunity Commission before the expiration of 60 days after proceedings have began under the Fair Employment and Housing Act (unless the state proceedings terminate before the expiration of 60 days). The 60-day period in which the Equal Employment Opportunity Commission charge cannot be filed is called the “exclusive processing period.”
- Second, if the charging party has initiated proceedings with the California Department of Employment and Fair Housing alleging a violation of the Fair Employment and Housing Act and also desires to file a charge with the Equal Employment Opportunity Commission alleging that the same practice constitutes a violation of Title VII, the charging party must file the Equal Employment Opportunity Commission charge:
- Within 300 days after the alleged violation occurred, or
- Within 30 days after receiving notice from the California Department of Fair Employment and Housing that it has terminated its proceedings, whichever is earlier. The Equal Employment Opportunity Commission is required to file copies of charges that initially are filed with it with the California Department of Employment and Fair Housing.
In most cases, a discrimination complaint initially filed with the California Department of Employment and Fair Housing is automatically deemed filed with the Equal Employment Opportunity Commission if the Equal Employment Opportunity Commission also has jurisdiction over the case. It can, however, be argued that an employer has a good defense to a Title VII claim if the charging party satisfies the following requirements:
- The person files a charge with the Equal Employment Opportunity Commission before filing with the California Department of Employment and Fair Housing, but
- fails to file the charge with the Equal Employment Opportunity Commission within 240 days of the alleged violation (unless the California Department of Employment and Fair Housing actually disposes of the charge before a total of 300 days has elapsed).
A timely claim under the Fair Employment and Housing Act can be filed within one year from the date the allegedly unlawful practice occurred. (Section 12.2(b) of the Manual).
Equal Employment Opportunity Commission Investigations
As noted above, California Department of Employment and Fair Housing investigations of complaints under the Fair Employment and Housing Act are normally conducted without benefit of a hearing or conference in which an eye-to-eye confrontation occurs between the complaining party and the employer. Instead, the investigation generally consists of:
- Examining the employer’s position statements;
- Reviewing the information and data provided by the employer in response to the complaining party’s allegations and the questions raised by the California Department of Employment and Fair Housing;
- Reviewing any information and data furnished by the complaining party; and
- Interviewing (in person or over the phone) individuals who may have information that is relevant to the truth or falsity of the allegations made against the employer.
The California Department of Employment and Fair Housing can also exercise its authority to compel testimony and the production of materials where necessary (Section 12.2(a) of the Manual) .
A hearing generally does not occur in the California Department of Employment and Fair Housing process unless it determines that an accusation should be issued against the employer. If an accusation is issued, a hearing is provided by the FEHC (Section 12.2(f) of the Manual).
Although the Equal Employment Opportunity Commission often utilizes similar procedures to investigate charges of unlawful discrimination under Title VII, it also has another vehicle available to it, called a “fact-finding conference,” to investigate allegations. A fact-finding conference presents an opportunity for the charging party and the employer to meet with a representative of the Equal Employment Opportunity Commission before the Equal Employment Opportunity Commission makes a determination on the charge. Although such a “conference” is intended primarily as an investigative forum designed to define the issues, to determine which issues are undisputed, and to resolve those issues that can be disposed of, it also is used as a means to ascertain whether the parties will agree to a negotiated settlement of a charge. Accordingly, it is strongly advisable in most cases for the employer to bring legal counsel to such a “conference” even though attorneys are not required to be present and technically are limited to an advisory role.
It also should be remembered that information obtained by the Equal Employment Opportunity Commission during a fact-finding conference can be used in subsequent proceedings. Furthermore, that information is generally reviewed by an Equal Employment Opportunity Commission supervisor and/or attorney before making a decision in the case. Thus, it is extremely important that information that is helpful to the employer’s case be presented at the conference and be recorded by the Equal Employment Opportunity Commission consultant so that it is made part of the record.
Employer’s Position Statements:
An employer’s approach to responding to a discrimination charge will vary depending upon a number of factors, such as the nature of the claim, the type of evidence available in favor of or against the allegations raised, the amount of liability potentially involved, the number of job applicants and/or employees potentially affected, and the availability of any defenses. However, an employer will usually want to defend its position aggressively by filing a statement of position with the Equal Employment Opportunity Commission in addition to its responses to the questions that accompany the notice of the discrimination charge, to the extent they are relevant.
When evaluating its defense posture and the appropriate course of action, the employer should keep in mind that the Equal Employment Opportunity Commission’s authority to conduct investigations is reasonably broad. Moreover, the revised position statement procedures adopted by the Equal Employment Opportunity Commission in 2016 call for the provision of an employer’s position statement and non-confidential attachments to the charging party.
Subject to certain limitations, Equal Employment Opportunity Commission representatives must, at reasonable times, be afforded access to and an opportunity to copy materials of the employer that are relevant to the charge under investigation. Also, the Equal Employment Opportunity Commission can issue a subpoena requiring the following:
- The attendance and testimony of witnesses,
- The production of evidence, such as books, records, correspondence and other documents, and
- Access to evidence for the purpose of examination and copying.
If a person is served with a subpoena and intends not to comply, it can, within five days (excluding weekends and federal holidays), petition the appropriate Equal Employment Opportunity Commission Director or the General Counsel of the Equal Employment Opportunity Commission by mail to revoke or modify the subpoena. Procedures are also established for the Equal Employment Opportunity Commission to compel compliance with the subpoena where necessary.
Reasonable Cause Determinations
The Equal Employment Opportunity Commission’s investigation, including information obtained in a fact-finding conference, can result in a determination that there is or is not reasonable cause to believe that a violation of Title VII has occurred or is occurring. If reasonable cause is found to exist, the Equal Employment Opportunity Commission will engage in “conference, conciliation, and persuasion” with the employer in an effort to secure the employer’s voluntary agreement to a just resolution of all alleged violations. This usually involves an Equal Employment Opportunity Commission proposal that the employer agree to implement certain remedial measures to eliminate the practices alleged to be unlawful and to provide appropriate affirmative relief. Accordingly, this procedure is a type of settlement process in which efforts are made to resolve the charge without litigation.
If an agreement is reached, it must be reduced to writing. However, if conciliation efforts fail, the Equal Employment Opportunity Commission may (but is not required to) bring a civil action against the employer.
Dismissals and Right to Sue Letters
If the Equal Employment Opportunity Commission determines that there is not reasonable cause to believe that Title VII has been violated, it must dismiss the charge and promptly notify the charging party and the employer. The charge also must be dismissed if it was not filed in a timely manner or fails to state a claim under Title VII. The Equal Employment Opportunity Commission also has discretion to dismiss the charge if the charging party does any of the following:
- Refuses to cooperate with the Equal Employment Opportunity Commission, to provide information, or to appear at conferences,
- Cannot be located despite reasonable efforts to do so, or
- Refuses to accept a written settlement offer of the employer that would afford full relief for the harm alleged.
If the Equal Employment Opportunity Commission dismisses the charge for any reason, it must notify the charging party in a “right to sue letter” that he or she may bring a civil action in a federal district court against the employer within 90 days of the date of receipt of such notice.
As a result of its extremely heavy caseload and limited staff, the Equal Employment Opportunity Commission is frequently unable to make a prompt determination regarding the charging party’s allegations. In such cases, the Equal Employment Opportunity Commission neither “invites” the employer to conciliate nor dismisses the charge while its “investigation” is pending. Additionally, while the Equal Employment Opportunity Commission encourages the parties to agree to negotiated settlements before the Equal Employment Opportunity Commission issues a determination as to reasonable cause, in many cases settlements are not reached. Therefore, since the rights of the charging party could be negatively affected by delay resulting from the Equal Employment Opportunity Commission’s inaction, a procedure exists to enable the charging party to assume the representation of his or her own case where a settlement is not reached. Because of this, a favorable disposition of a case at the Equal Employment Opportunity Commission level does not insulate an employer from further challenges on the same matter.
Exhaustion of Administrative Remedies
Title VII encompasses an elaborate administrative procedure that is designed to facilitate the investigation and resolution of claims of unlawful discrimination. The objective of this procedure is to encourage the resolution of claims through conciliation (rather than litigation). An individual may bring a Title VII claim in court only after exhausting the administrative procedures before the Equal Employment Opportunity Commission and obtaining a “right to sue” letter from the Equal Employment Opportunity Commission.
Advice of Counsel
In virtually all cases, it is advisable for employers to consult with legal counsel who is experienced in employment discrimination matters immediately upon receiving notice of a charge or being contacted by Equal Employment Opportunity Commission or an attorney for the charging party.
Employers should be extremely cautious when responding to notifications of Equal Employment Opportunity Commission charges, participating in the investigation process, or attending a fact-finding conference. If an employer makes inappropriate statements or admissions, provides information that is not requested, addresses extraneous issues, or responds to irrelevant questions, it can seriously prejudice its case. Furthermore, since the Equal Employment Opportunity Commission often places great emphasis on settlement at and before a fact-finding conference and often attempts to influence employers to settle in such conferences, failure to be prepared at such a conference or to understand the issues involved can create additional problems.
Employers frequently attempt to oppose Title VII challenges based on contentions related to the untimely manner in which either a charge is filed with the Equal Employment Opportunity Commission or a civil action is commenced after the Equal Employment Opportunity Commission dismisses a discrimination charge and issues a right to sue notice. The United States Supreme Court has held that it is normally necessary to file a timely charge with the Equal Employment Opportunity Commission in accordance with time constraints (Section 12.4(b) of the Manual). However, filing a timely charge with the Equal Employment Opportunity Commission is not a prerequisite to suit in Federal court. Instead, the obligation to file a charge in a timely manner under Title VII is subject to waiver, estoppel, and tolling when equity so requires. Equitable tolling principles, which operate to suspend the running of the limitations period, have also been recognized under the Age Discrimination in Employment Act.
Conversely, if an aggrieved individual does not file an action within the prescribed time limit, federal courts normally have no power to entertain the action. Additionally, the United States Supreme Court has held that the 90-day requirement is not tolled by equitable principles where an individual who has been advised of the requirement to initiate a timely court action in the right to sue notice simply fails to act diligently. Likewise, the filing period was not tolled by an individual’s use of a grievance procedure provided by a collective bargaining agreement or by an individual’s pursuit of independent remedies.
On the other hand, the Ninth Circuit Court of Appeals found that an employee is entitled to equitable tolling of the statute of limitations when:
- An employee is prevented from asserting a claim by wrongful conduct on the part of the employer, or
- extraordinary circumstances beyond the employee’s control made it impossible to file a claim on time.
The Supreme Court has also said that the commencement of a class action displaces the applicable statute of limitations as to all asserted members of the class. A class member, then, had a full 90 days after class certification was denied to file a civil action in federal court (California courts have also recognized principles of equitable tolling under limited circumstances to protect individuals against the running of a state-established limitations period).
The California Supreme Court has also recognized that employers may be held liable for unlawful actions occurring outside the one-year limitations period where the “continuing violations doctrine” applies. This authorizes liability for unlawful conduct occurring outside the limitations period if it is sufficiently connected to unlawful conduct within the limitations period. The Supreme Court concluded that an employer’s series of unlawful actions in a case of failure to reasonably accommodate an employee’s disability or disability harassment should be reviewed as a single actionable course of conduct if:
- The actions are sufficiently similar in kind;
- They occur with sufficient frequency; and
- They have not acquired a degree of “permanence” so that employees are on notice that further efforts at informal conciliation with the employer to obtain accommodation or end harassment would be futile.
The United States Supreme Court recognized the applicability of the continuing violation doctrine to hostile environment claims in certain instances.
Defenses and Settlement of Charges
Employers are strongly advised to consult legal counsel before attempting to respond to any formal or informal claim of discrimination or inquiry of the California Department of Employment and Fair Housing or the Equal Employment Opportunity Commission. Thereafter, an employer can decide with counsel the appropriate strategy for responding to such a claim and the role that the attorney should play. As a practical matter, the employer also may wish to explore settlement possibilities at this time if it is interested in disposing of the matter without extensive delay, expense, and administrative inconvenience.
Among the numerous considerations that should be evaluated in the process of developing an appropriate strategy are:
- The nature of the allegations of discrimination;
- The number of job applicants and/or employees potentially implicated by the claim;
- Whether a class or individual claim is involved and whether it is likely that additional parties will be included in the claim;
- The employer’s potential exposure to liability if it should lose and the nature of available remedies;
- Whether exposure can increase further by a delay in resolving the claim;
- Whether the claimant can and has mitigated damages;
- The expense that would be incurred in actively defending the claim, including attorney’s fees, administrative costs, inconvenience, and lost time of key witnesses;
- The precedential effect of a settlement or a decision on other employees;
- The evidence supporting the charging party’s allegations and the evidence supporting the employer’s position;
- The availability of one or more legal defenses;
- The potential for settlement and the probable cost of settlement;
- The foreseeable impact of settling or litigating on employee morale;
- The likelihood of adverse publicity;
- The probability of success or failure in asserting any available defenses; and
- The likelihood of prevailing if the dispute is resolved by a court.
Evaluation of the factors noted above can assist an employer to determine whether settlement of the case should be pursued and, if so, the terms of a settlement that would be acceptable.
The Equal Employment Opportunity Commission and the California Department of Employment and Fair Housing representatives are under considerable pressure to settle cases where feasible in order to reduce their heavy backlog of cases. As a result, they encourage no-fault settlement offers by either party and prefer to resolve cases before it becomes necessary to issue a determination as to whether there is or is not reasonable cause to believe that the practices complained of were unlawful. Also, a settlement offer can be made and accepted at virtually any stage during the investigative process. Regardless of whether an employer decides to pursue a settlement or an aggressive defense, it must carefully plan a strategy to implement its decision without prejudicing its case. For instance, an employer generally should convey any settlement offer that it makes as a “no fault” settlement in which it continues to deny any allegations of unlawful discrimination against it. Otherwise, admissions of guilt made in settlement negotiations that do not result in a complete settlement may prejudice the employer’s defense in subsequent proceedings. Also, in some instances admissions of wrongdoing may affect claims of other individuals that may not be anticipated when one claim is being settled.
The Use of Releases and Waivers
Settlement agreements generally do not preclude the administrative agency from proceeding against an employer in connection with unresolved issues. However, a charging party can accept a settlement in lieu of pursuing further administrative or judicial remedies. Therefore, employers are well advised to obtain a written release of all claims (including claims that do not pertain to discrimination) by the charging party in exchange for anything it gives as part of the settlement. Although the Equal Employment Opportunity Commission or the California Department of Employment and Fair Housing may occasionally oppose releases that give greater protection to the employer than that offered by the standard agency releases, it is often important that the employer use its own release either instead of or in addition to the standard agency release. Furthermore, as a result of the enactment of the Older Workers Benefit Protection Act of 1990, releases and waivers of claims under the ADEA entered into on or after October 16, 1990, must satisfy highly burdensome requirements. These requirements include the provision of a reasonable period of time to an individual in the protected age group to evaluate the release, with the benefit of legal counsel, and a revocation period following the execution of the release.
Employers who fail to obtain releases that are sufficiently broad may find it necessary to defend themselves against other actions by the same individuals under different laws.
Settlement offers by an employer can range from an offer to provide a neutral employment reference (e.g., verifying the former employee’s position, dates of hire and termination, and wage rates) to various forms of affirmative relief, such as reinstatement with back pay and restoration of lost benefits and seniority. Numerous other forms of relief also may be offered in settlement. Proper releases and waivers are enforceable.
Measuring Exposure to Liability
In cases involving alleged discrimination resulting from the denial of a job opportunity, an employer faces potential liability that includes back pay that would have been received had the job been provided. Accordingly, any earnings received by the applicant or employee elsewhere after the date the job was denied should be considered before communicating any settlement offer since these amounts normally operate to reduce the amount of the employer’s exposure. The same is true of earnings that reasonably could have been earned during such period. Further, if it appears that liability for back pay is continuing to accrue during settlement negotiations and an offer to reinstate or hire the individual will be made, the employer may wish to convey a written offer of reinstatement or employment before the negotiations for other forms of relief are concluded in order to limit its back pay exposure. Obviously, numerous tactical considerations will affect such a decision.
Internal Investigation of Charge(s)
An employer must carefully investigate the allegations made in the charge of discrimination before it will be fully capable of evaluating the case for settlement or deciding to litigate. There are significant advantages to conducting such an investigation before a decision is made to commit to either course of action. For example, although the employer cannot depose or interrogate the charging party at its convenience, the employer generally has greater and more immediate access to information concerning the alleged practices or incidents than an administrative agency, even though the agency may have subpoena powers. Therefore, if the employer conducts an investigation in good faith as soon as possible after receiving notice of the claim, it usually will be in a position to evaluate the strengths and weaknesses of the claim. In this way, the employer can ascertain whether the claim has merit or is simply a frivolous or vindictive response by a former employee to an unsatisfactory employment relationship. A prompt investigation will enhance the likelihood of obtaining accurate information that is fresh in the memories of potential witnesses.
The investigation ordinarily should be confined to those individuals who were witnesses or possible witnesses to the alleged incidents and others who appear to have meaningful information concerning the claim. For example, a supervisor to whom a charging party complained ordinarily should be involved in the investigation even if the supervisor did not actually observe the incident that was the subject of the allegation. On the other hand, an investigation should not be overly broad since it can become a disruptive element in the workplace.
It can also impact adversely on the perception by others of the individual or individuals who are alleged in the complaint to have committed the unlawful conduct. Employers should also be mindful of defamation laws that protect such individuals as well as the laws protecting the charging party against discrimination and retaliation. This is particularly important where allegations of sexual harassment have been made. Finally, the involvement of legal counsel in the investigation process may operate in some cases to protect portions of the product of the investigation against discovery or disclosure to other parties, including the Equal Employment Opportunity Commission and the California Department of Employment and Fair Housing, due to the work product and attorney-client privileges. Once the employer’s investigation has been completed, it will be able to determine, on an informed basis, the appropriate course of action and will be in a better position to shape its strategy. Finally, it may also learn why the claim was filed and be in a better position to remedy problems and thus avoid future claims.
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