This image portrays the documentation necessary to file a discrimination claim against someone you work with at the EEOC

Your Discrimination Claim and the EEOC

Do you want to file a discrimination claim but have no idea where to start? The EEOC requires an employee to follow certain procedures and comply with critical deadlines.

At Gardner Employment Law, we have extensive experience in litigating employment discrimination claims and working through EEOC matters. If you need an experienced EEOC attorney to help you jump the hoops of filing a discrimination claim, give us a call today.

What is the Equal Employment Opportunity Commission?

The EEOC (Equal Employment Opportunity Commission) is the federal government agency that enforces anti-discrimination, anti-harassment, and anti-retaliation laws in the workplace through its regulatory power. The laws enforced by EEOC include the Americans with Disabilities Act, Title VII of the Civil Rights laws, and the Age Discrimination in Employment Act. As we discuss in “EEOC Attorney,” the EEOC investigates claims of discrimination, harassment, and retaliation. Contrary to popular belief, the EEOC does not have the ability to make laws, nor is it a court.

What Qualifies as Discrimination?

According to the EEOC website, the laws that protect employees from discrimination cover race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information (including family medical history or genetic tests).  These are called “protected classes.” To assert a claim for discrimination, an employee must fall within one of these protected classes. For example, being short or being overweight does not qualify an employee to protection from discrimination because of those characteristics, except if that characteristic is caused by a genuine disability, which we explain in “Americans with Disabilities Act.”

Some examples of discrimination include:

  • Unfair treatment on the basis of a protected class, i.e., because of the employee’s race, sex, religion, national origin, age, disability, or genetic information
  • Harassment by co-workers or managers because of an employee’s protected status
  • Refusal to accommodate your workplace needs on the basis of religion or disability
  • Inappropriate questions about your family medical history, genetic information or other protected status

What Types of Treatment at Work Can Be a Valid Discrimination Claim?

An employer’s adverse action because of a protected class pertains to “all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits,” says the EEOC. However, the adverse treatment must be more than something petty. In other words, the adverse action must be material to your job and your livelihood. The laws enforced by the EEOC also protect you against retaliation from asserting your legal rights, such as reporting a discrimination claim to your employer or filing a Charge of Discrimination with the EEOC.  It is illegal for an employer to retaliate against an employee for requesting investigation or lawsuit based on discrimination.

Does Texas Have Laws Against Discrimination?

Texas enacted anti-discrimination and anti-retaliation laws that are found in Chapter 21 of the Texas Labor Code. Texas’ regulatory agency is the Civil Rights Division of the Texas Workforce Commission. Some states and local areas have their own anti-discrimination laws in additional the federal laws. In those instances, by filing with one agency, either federal or state, the employee is “deemed” to have filed the claim with the other agency. The claim is “dual-filled” just by filing once.

Texas is one of those states. If you decide to file your claim with the EEOC, you automatically have your claim filed with the Texas Workforce Commission’s Civil Rights Division.

Filing Deadlines Are Critical

If an employee realizes that she or he is a target of discriminatory action, the employee must file a “Charge of Discrimination” with the EEOC no later than 180 days.  That is not 181 days.  You must accurately count the number of days. After the EEOC issues its final decision, usually found in a “Notice of Right to Sue,” the employee has only 90 days after receiving the Notice of Right to Sue to file suit in federal court.

The deadline for filing a claim under Chapter 21 of the Texas Labor Code is 180 days. Because we have the Texas Workforce Commission’s Civil Rights Division, the law provides an extension to 300 days to file a Charge of Discrimination with the EEOC based on the federal laws.  (Again, this is not 301 days.) Then to assert the rights under the Texas Labor Code, after either the EEOC or the Texas Workforce Commission’s Civil Rights Division issues a Notice of Right to Sue, the employee has only 60 days to file suit in Texas courts, not 90 days as for a lawsuit in federal court.

Texas has another deadline not found in the federal laws, a requirement to file suit in state court no later than 2 years from the date when the claim of discrimination was filed with either agency.

If any one of these deadlines is missed, the claim of discrimination or retaliation is forever barred. These time periods can fly by quickly, so you should mark your calendar if you are serious about pursuing a claim for discrimination or retaliation.

Can I File Suit in Court without Going to the EEOC?

Filing the Charge of Discrimination with the EEOC (or with the Texas Workforce Civil Rights Division) is a required step before filing suit. In order to file a job discrimination lawsuit, you first must timely file a Charge of Discrimination with the EEOC (or the Texas Workforce Civil Rights Division) and obtain the Notice of Right to Sue. You cannot skip filing with the EEOC if you intend to sue for the discrimination, harassment, or retaliation that you endured.

How Do I File a Complaint of Discrimination with the EEOC?

In order to file a Charge of Discrimination with the EEOC, you file your Charge online at the EEOC’s public portal. Timing is not only important, but the wording as well. I have seen many employers mount a defense that the employee’s discrimination charge was no good because of the wording. Make sure you have an experienced discrimination lawyer review your discrimination claim so that you have the proper foundation to file suit later on.

Once you file the Charge of Discrimination, the EEOC will attempt conciliation between the parties by offering free mediation services. At the mediation, the EEOC brings both parties together and attempts to find a solution without ever going to court. If conciliation does not resolve the dispute, the intake person will assign your case to an investigator who will examine your claims and send you an email notice to document the date of receipt of your Charge. The investigator sends a copy of the charge to your employer, who must respond with what is called a “Position Statement.” You are then given the option to reply.

The investigator analyzes all of the documents and communications submitted by both parties and makes a recommendation. This process must remain with the EEOC for at least 180 days, roughly 6 months. Sometimes the investigator will take longer than 180 days, which is more usual during our pandemic-caused backup. The process will end with the EEOC investigator making a recommendation, most often by issuing a “Notice of Right to Sue.”  This form states that the EEOC did not find evidence of discrimination but permits the employee to file suit in court.

In only a very small percentage of the cases does the EEOC issue a finding of “reasonable cause” to believe that discrimination has occurred. That percentage continues to decrease.  In 2020, the EEOC filed only 93 lawsuits out of the 67,448 charges filed. 

Filing a Claim of Discrimination Can Be Treacherous

If you have been a victim of workplace discrimination, harassment, or retaliation, time is of the essence. Get an experienced EEOC attorney who knows the intricate process of filing claims with the EEOC.

At Gardner Employment Law, we know the law and the EEOC procedures. If you need experienced legal advice about workplace discrimination, contact us today.

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