What can I expect after I file a complaint with the EEOC?

*This is a transcript of the Facebook Live video from 5-18-18  Click here to watch the video.

I always say the thing you need to do is be patient, because once you file a complaint, then it gets put in line for investigation. While it’s in line for investigation, it can be selected for their mediation program, which I’ve described before. What happens is, you will get a letter, the complaining party will get a letter that says you want to engage in mediation. The responding party, the employer will get a letter saying you want to engage in mediation. If both of you say “yes,” then they schedule a mediation, and the case is removed from the investigative line, if you will, and put in the mediation office. That’s important, because it, A, reduces the casework for the investigator so they can move on to other cases, but it also segregates it from the investigator so that they won’t be prejudiced by what may or may not happen in the mediation.

If you resolve your case in mediation, then it’s over, and both parties will sign a release saying that the case has been resolved, and if the employer has promised to pay money, then the money is paid, and hopefully both parties go on with their lives and it’s happily ever after at that point. It may take the EEOC, assuming that the mediation process either doesn’t work, doesn’t result in a settlement, or the case isn’t selected for mediation, then it will be investigated or evaluated. The next step is evaluation. Again, the EEOC doesn’t always talk about its criteria, but sometimes the EEOC will look at a case and say, “We’re not going to investigate it,” and they will issue a right-to-sue letter. What that means is, if you get a right-to-sue letter, you then have 90 days from the day that they issue the letter to file a lawsuit in federal court, or you lose your right to file a lawsuit under the federal statute.

Sometimes those letters come very, very quickly. I’ve had them come the same day that the claim is filed. I’ve had them come years after the claim was filed. Every case is different. The ones that are selected for investigation, the investigator will send a notice to the employer, the responding party, and ask for their response to the complaint. Usually takes 30 to 60 days for that to happen. I find that most lawyers who represent employers usually get the case two or three weeks after the EEOC has sent a notice, and so they need a little bit of extra time to investigate themselves and figure out what’s going on, but then the response comes, and then the investigator may ask for more information, may ask for more documents, may ask to come and interview witnesses at the workplace, or want to interview people off-site. That really just kind of depends on the circumstance and the investigator. I’ve also had situations where, when there was a lot of distance involved, the investigator might do some phone interviews.

Then, at some point, the investigator will determine whether or not the EEOC wants to take the case for litigation, in other words, the EEOC handle the case themselves, or whether it’s going to issue a right-to-sue letter. That can come in a number of different kinds of flavors. Sometimes the EEOC will say, “We find merit, but we’re not going to take the case,” and issue a right-to-sue letter. Sometimes they’ll say, “We don’t find merit, and we’re going to issue a right-to-sue letter.” Sometimes they say, “We don’t see it one way or the other,” and issue a right-to-sue letter. The bottom line is, you get the right-to-sue letter, and then you have the ability to move the case forward in federal court.

Frequently, I’ve had clients that get frustrated with the pace at the EEOC. All I can say to them is to be patient and that there’s a lot of benefit to the EEOC doing an investigation, particularly if the client doesn’t have a lot of financial ability to do their own investigation, so it can be helpful for the investigator to talk to people and get some transcribed interviews and so forth. That can be very helpful down the road. Sometimes I have clients that have done an investigation themselves, or perhaps I’ve done it for them. They’re ready to go to court. They don’t want to wait for that. You can then request the investigator send a right-to-sue letter, and most of the time the investigators will do that. Just as all cases are different, all investigators are different, they have their different ways of working, and I’ve found that EEOC investigators can be great allies on both sides of the equation, but particularly if there’s a meritorious case, sometimes the investigator can be very helpful in helping to negotiate a resolution of the case that’s satisfactory to the complainant.

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