This blog on the EEOC investigation is the third in a series directed answering the most pressing questions of victims suffering from sexual harassment. This series, was developed to answer the frequently asked question, “What should an employee do if she is feeling sexually harassed at work.” We have said before, and we will say it again in each of these blogs, the very short answer is: call an attorney immediately. Do not wait; do not let the pain, frustration and anger build. AND DO NOT QUIT. You will have all kinds of concerns about what will happen if you take certain actions and how to best proceed. Each situation is different and these blogs are not intended as legal advice as to a particular situation. A consultation with a lawyer will give you the opportunity to explore the issues related to your particular situation.
Part I addressed the requirement to report the harassment. In Part II, we discussed the beginning of the EEOC process: The filing of a charge of discrimination and the possibility of mediation. In Part III we now address the EEOC’s investigative process. The investigation process begins when the charge is referred to the investigation unit. This happens either when one of the parties rejects mediation, or mediation fails.
In 2014 88,778 charges were filed at the EEOC. . The EEOC cannot do a thorough investigation in every single case. It has to triage the cases. Some charges will be dismissed almost immediately and the EEOC will issue a Notice of Right to Sue, also known as a 90 day letter. A Notice of Right to Sue means that the charging party will have 90 days to file her case in Federal Court.
If it is not dismissed early, once an investigation has begun, there are three possible outcomes: 1) A “determination” which means that the investigator found sufficient evidence to support the charge; 2) a finding of “lack of substantial evidence”; or 3) a dismissal by the EEOC noting that it will not be able to complete an investigation. Be aware that noneof these outcomes means you have won or lost your case. It is simply a non-binding finding (or release of your case) by the EEOC based upon the evidence it has been able to obtain.
The first step in the investigation process is for the employer to file a “position statement.” This is the employer’s response to the charge. It usually provides a good deal of background information in addition to its view and from this position statement, the investigator can begin to identify information she wants.
The EEOC investigator will usually begin the investigation by scheduling a time to interview you (with your attorney if you are represented). This interview gives the investigator a chance to get your full story as well as any supporting documents, and to get a list of places to look for information (e.g. who else to interview, where to look for documents, video cameras, and anything else that might assist in the investigation.) The EEOC investigator will then do a good deal of work that you won’t see. Sometimes the investigator will come back to you and ask for more information.
At the end of this process, the investigator will either issue a determination — a finding that there is evidence of sexual harassment — or a Notice of Right to Sue. If she does the latter, you now have 90 days to file your case in court. (This will be discussed in Part IV.) If she issues a determination of sexual harassment, she will begin the conciliation process.
The conciliation process is similar to mediation except that now, the EEOC is a party to any settlement. The EEOC investigator will call you or your attorney and discuss what she thinks is appropriate. She is going to look for compensation or other work adjustments for you, and some additional items for the EEOC (perhaps for example an agreement from the employer to conduct training of its employees on how to prevent sexual harassment). If conciliation is successful, you will have some form of settlement agreement and the case will be dismissed.
If conciliation fails, the EEOC has the right to file its own lawsuit against your employer. If it does so, the EEOC is the plaintiff in court. You and your attorney can join the suit to represent your interests. As a practical matter the EEOC does not file its own lawsuit in most cases. Rather, it will issue a Notice of Right to Sue and you will have 90 days to file your case in Federal Court. That will be the subject of the next blog in this series.
If you feel that you have been a victim of sexual harassment, contact Maduff & Maduff. Our attorneys have been specializing in discrimination, wage and overtime theft, and civil rights for more than 20 years. Contact us with your employment legal concerns today.