Even though I practice employment law, I am still surprised at how many employees contemplate employment discrimination lawsuits. To subject oneself to such a long, painful, and expensive journey seems counterintuitive. However, emotions run high when an employee is fired. The first step in any such journey, for both employees and employers, should be to understand how the employment discrimination process works. This article outlines that process under federal law. See also www.eeoc.com. (For brevity's sake, I omit the wrinkles created by state and local employment law.)
The single most important thing to understand is that an aggrieved employee cannot go straight to court. Because of the massive number of employment disputes, Congress requires that all such charges be filed first with the Equal Employment Opportunity Commission—the EEOC. Generally, an employee must file a Charge of Discrimination within 300 days of the alleged wrongdoing. These charges are short-about two pages-and require employees to (1) provide basic information about themselves and their employers, and (2) identify the allegedly illegal activity by checking a series of boxes and providing a very short narrative (usually two or three sentences).
The crux of any employment discrimination claim is that the employer, when it took an adverse employment action, had an illegal motivation. A variety of federal statutes make the following motivations illegal: race, national origin, religion, age, disability, pregnancy, and sex. Sexual harassment is simply a common type of sex discrimination. (State and local laws may also protect other categories, like sexual orientation.) Thus, the second most important thing to understand is that only these reasons provide a legal basis for an employment discrimination claim. "Unfairness," "poor treatment," or even "being an S.O.B." by itself, does not.
Upon receiving a charge, the local EEOC office forwards it to the employer, called the "responding party." In addition, the EEOC provides several pages encouraging employers to mediate the dispute. Unless an employer is prepared to offer something, like money or reinstatement, mediation should be declined and a response to the charge should be prepared. The response is simply a letter (typically 2 to 12 pages long) in which the employer explains why the action was taken. The employer must provide documentation to support its explanation.
Most EEOC offices engage in some sort of "charge triage," prioritizing the ones that appear, at first blush, to be most important. For a normal charge, the EEOC simply makes a copy of the response and sends it to the employee, who then has a chance to reply. The employee's reply is sent back to the employer. This back-and-forth continues so long as each side wishes. The EEOC, meanwhile, is only shuttling the papers. The EEOC agent assigned to the case will not actually read any of the letters or documents for up to a year or more.
Once the file surfaces on the (overworked) EEOC agent's desk, he or she will read the submissions and perhaps make a few follow-up phone calls or request a few more documents. On-site investigations or interviews are very rare. The agent will draft a very brief recommendation for his or her supervisor. The supervisor makes the decision on whether there is "probable cause" that the employer violated the law. Another important misconception is that these EEOC determinations are somehow binding in court. They are not. The jury (or judge) ultimately will decide whether a violation has occurred, regardless of the EEOC conclusion. Assuming it is introduced at trial, however, it may be particularly persuasive evidence.
What is more important about the EEOC's conclusion is that it comes in the so-called right-to-sue letter, the letter that informs the employee that he or she may now, and only now, file a lawsuit in court. The employee has 90 days from receipt of this letter to file in state or federal court. Violations of federal employment laws almost always end up in federal court, either because the plaintiff (employee) initiates the suit there or because the defendant (employer) moves the case from state to federal court.
Once in court, the process, in a sense, starts over again, but now the stakes are much higher. Like the EEOC, the federal court will first seek to resolve the case through mediation. If mediation fails, then the parties begin formal, judicial discovery. This is similar to the EEOC fact-finding process, except that it is much more detailed and there is no intermediary-the parties (actually, their lawyers) develop the facts themselves. It is time-consuming, expensive, and often unpleasant.
Once fact-finding is complete, the parties may file motions with the court to have it resolve all or any part of the case. The court will grant such motions only if there are no relevant facts in dispute and a party is entitled to judgment as a matter of law. Assuming these dispositive motions do not resolve the case, then it finally proceeds to trial. By this time, it could easily be three or more years later.
Federal court statistics reveal that 78% of all civil cases settle. An additional 20% are decided on dispositive motions-the majority of those in favor of defendants. Thus, only 2% of all cases filed in federal court go to trial. Interestingly, about half of these tried cases are employment disputes.
Practical Application
A few final conclusions are in order. First, about 80% of employment disputes are resolved in the first year during the EEOC process. The vast majority of those cases are either settled or dismissed as lacking probable cause. Many cases are dropped by the employee, who, after several months, has gotten over the hurt, found another job, and moved on with life. Second, employment discrimination disputes, by design, involve a long, drawn-out process. The sheer length is designed to weed out groundless claims. Third, employers prevail in the overwhelming majority of cases. An employer can improve its chances of avoiding discrimination disputes altogether by articulating and documenting the reasons for a dismissal prior to acting. The risk, of course, is that if evidence of discrimination exists, employers could end up paying lots of money both to proceed through the process and to resolve the case, either by settlement or by paying an adverse judgment.
Eric V. Hall is an associate in RJ&L's Colorado Springs office, where he practices in the firm's Religious Institutions and Labor and Employment Law Groups. Prior to joining RJ&L, Mr. Hall served the Honorable David M. Ebel of the U.S. Court of Appeals for the Tenth Circuit as a law clerk.
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