The process for filing a complaint requires a thorough analysis of the claim itself. There are two very distinctly different types of employment claims.
First, there are suits filed against an employer for violation of employment discrimination law. These include Title VII (race, color, creed, national origin, gender), American with Disability Act (illness or disability), Pregnancy Discrimination, sexual orientation, family leave, and Age Discrimination in Employment Act to name a few.
To prove this, you must show that the employer did not have a reasonable, non-discriminatory business basis for the adverse employment decision. Retaliation has become a popular vehicle for discrimination suits, but requires some form of underlying protected action before it can apply. Sexual harassment or gender discrimination falls under gender employment discrimination. This grouping of laws carve out a “protected class” that cannot be the basis of employment decisions without exceptionally compelling business necessity.
Secondly, there are suits filed for wrongful termination in violation of the employment agreement between the parties. This mostly applies to contractors, however, depending on the employment agreement between employee/employer, it may also apply to a regular employee. In this instance, a term of employment was violated by the employer, making the employer’s conduct invalid on the basis of breach of contract or estoppel.
When employment discrimination is alleged, it is important that the employee start taking notes documenting employer misconduct. Overt discrimination is rare, but does happen on occasion. In legal parlance, overt discrimination is called “disparate treatment”. This occurs when the employer states they are taking some action against you on account of your protected class. For example, your boss indicates you cannot be promoted because you are male. This is a form of overt, intentional discrimination that leads directly to a legal argument in front of a judge.
Usually, however, discrimination takes the course of “disparate impact.” In this form of discrimination, the employer does nothing overt. Instead, he engages in a pattern and practice of discriminatory practice designed to “push” the undesirable protected individual out, or interfere with the terms or nature of employment (i.e., promotions, raises, hiring, etc.) of a particularly protected group. An example of this might be a consistent failure to approve any medical sick days when your boss knows you have an illness that requires treatment. The mere denial of leave is well within the purview of the employer. A pattern of denying sick leave when you need to take care of on-going medical issues could give rise to a violation of the FMLA (Family Medical Leave Act) – and show a passive method your employer is using to force you out on account of illness.
It is important to remember that the key to proving disparate impact is note keeping. You must have a good series of records and instances where the employer has acted out against you or against those similarly situated. That having been said, do not presume every negative action of your employer is aimed as discrimination against you. Discrimination is a long and difficult course to prove. Cases can take, quite literally, years.
A discrimination case may be initiated with the State EEO office, or the Federal EEO office. The initial investigation often requires mediation and discovery; in the Federal government, each Federal Agency has an EEO investigation office that conducts investigations of all EEO claims. While mediation can be helpful to learn more of the opposition’s position, it should be avoided as a time wasting exercise whenever possible. The real negotiations begin when either arbitration or a hearing before the EEO administrative judge is had. It is often not advisable to agree to binding arbitration. However, arbitration itself can be very employee friendly given the often significantly relaxed evidentiary standards (although this is not always the case, and research should be done to determine with whom the arbitration will be conducted and under what rules prior to agreeing to binding arbitration).
For more guidelines on how the EEOC (Equal Employment Opportunity Commission) handles federal worker employment discrimination cases, visit the trial manual (rules of court) at: MD110 Guidelines.
For more information about how to file a basic (non-federal employee) complaint with the EEOC: How to file with the EEOC. Remember — you have only 180 days to file (in most instances; this can be extended in certain circumstances).
Are you facing an EEO challenge? As either employer or employee, trial and employment matters can be frightening. Let us help you! Give us a call for a free, confidential, case assessment.
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