Discrimination rights

Discrimination: Strategies to Enforce Your Rights

Recognizing discrimination is only part of the battle; proper steps must also be taken to enforce your rights. As previously mentioned, the law entitles victims of discrimination to recover a variety of damages. This may include reinstatement or job hiring; receiving wage adjustments, back pay, and double back pay; receiving promotions and future pay; recovering legal fees, filing costs and fees paid for expert witnesses; receiving punitive damages and compensatory damages up to $300,000 depending on the size of the employer, and other damages depending on the facts of your case. Even if you work in a right-to-work state and can be fired easily, it is illegal to be fired because you belong to a protected class, such as being a woman, over 40, a minority, handicapped, or a religious believer.

In seeking to enforce your rights, you will not be alone. More than 100,000 formal complaints are filed each year with the EEOC and approximately 10,000 private discrimination lawsuits are tried in court annually. This does not include the many hundreds of thousands of complaints brought to state and local agencies and other institutions.

To start the ball rolling, it is necessary to file a formal charge. No one can stop you from filing a complaint; the law forbids employers from threatening reprisals or retaliation (such as loss of a promotion) when action is taken. The following facts must be included in the complaint:

1. Your name

2. The names, business addresses, and business telephone numbers of all persons who committed and/or participated in the discriminatory act(s)

3. Specific events, dates, and facts to support why the act(s) were discriminatory (e.g., statistics, whether other employees or individuals were discriminated against, and if so, the person(s) victimized, and by whom)

The complaint must be signed and sworn to by the complainant. However, it is not necessary for the complaint to be lengthy or elaborate. The main purpose is to allege sufficient facts to trigger an investigation. That is the advantage of filing charges with an appropriate agency; charges of discrimination are initiated and investigated at no cost to you. An investigator from the EEOC or state agency prepares and types the complaint. If your claim seems plausible, the EEOC or other agency will develop the claim on your behalf. A copy of the complaint, together with a request for a written response, is then sent to the employer. The employer must respond to the charges within several weeks. This is done either by a general denial of the claim or by the filing of specific facts and reasons to support the employer's position.

The following text illustrates the brevity of a valid complaint:

"I am a female. On (date) I was notified by my supervisor (name) at (name of employer) that I was fired. I asked (name) to tell me why I was fired; he said it was because I called in sick six times in the past year. I know of several male employees who called in sick more than six times and who were not fired.

Based on these facts I believe I have been discriminated against on the basis of my sex."

After charges and countercharges have been examined by an investigator, the employer and the complainant eventually may be invited to attend a no-fault conference if the investigator believes the complainant's charges possibly have merit. Cases that are deemed to be too far-fetched or insufficient on their face are dismissed before the no-fault conference. If you receive a notice from the EEOC that your case has been dismissed (sometimes referred to as lacking probable cause), it must advise you of your rights. The letter will state that if you wish to proceed with your case, you must file a formal lawsuit in federal court within 90 days or forfeit your claim. This is called a "right-to-sue" letter.

The purpose of a no-fault conference is to discuss your case. At that time the investigator may make arrangements to visit the employer's premises, examine documents and other pertinent records, and interview key employees and witnesses. Because an employer may have an incentive to dispose of the matter early on to save excessive legal fees, lost manpower time, and potential damages, approximately 40% of all complaints are disposed at the settlement conference.

Tip: Although it is not necessary to retain a lawyer to represent you at or before the no-fault conference, the chances of settling your case are much higher with a lawyer present. An employer will bring its counsel, and you may be intimidated. Additionally, an experienced lawyer can evaluate your claim and advise how much it is realistically worth. Since many EEOC claims take years to eventually be heard, a lawyer will advise you whether a settlement offer is valid and should be accepted, particularly after considering the lengthy delays that are frequently involved.

The conference is conducted by an investigator. Pressure may be placed on the employer to offer a monetary settlement or some other form of restitution (such as a promotion) to avoid the large legal expenses that would be incurred in the course of an ongoing investigation and eventual hearing. Also, some employers may be fearful that the investigator will examine its business records, including employment applications, inter-office memos, and pay records if a settlement is not reached.

If your case cannot be settled at the conference, many options are available, including:

Hiring a lawyer privately and suing the employer in a civil lawsuit, typically in federal court

Representing yourself pro se (without a lawyer) and suing the employer in federal or state court

Having the agency act on your behalf to protect your rights and proceeding to a fact-finding hearing and determination

Having the EEOC or Department of Justice commence a lawsuit for you and/or others similarly situated in a class action lawsuit

Hiring a lawyer and commencing a private lawsuit in state court and, if applicable, alleging other causes of action as well as violations of discrimination laws

The advantage of suing an employer privately is that you may receive a quicker settlement. The EEOC and other agencies have many thousands of claims to process and follow; your case could take years before it is acted upon. Even if you receive a favorable decision (referred to as a finding of "probable cause"), the employer can appeal the agency's decision, adding years to the delay before an administrative trial is commenced. A lawyer working for you may be able to move the matter along more quickly. However, private lawsuits can be very expensive. That is why it is best to initially contact the nearest district office of the EEOC or state agency and speak with an intake person or investigator, or contact a lawyer and discuss your options before taking action.

Tip: State and local laws are often more favorable than federal law in terms of the standards of proof required, the amount of damages awarded, and other factors. It may be advantageous to file charges with these agencies instead, so do not automatically assume your case must be filed with the EEOC. Talk to an employment lawyer to discuss your options and maximize a claim.

When you retain a lawyer, he or she may first contact the employer by letter. The letter may specify the potential charges and invite the employer to discuss settlement before the matter proceeds to the next step. Cases are often settled this way before a formal discrimination charge is filed. The letter on the following page illustrates the kind of letter that a lawyer may send on your behalf.

Author's Note: The tone, language, and substance of an initial demand letter will vary depending on your lawyer's style, preference, and the facts. The purpose is to get the company's attention so that the lawyer will receive a favorable response. Hopefully, a dialogue and appropriate settlement will ensue prior to the institution of further legal proceedings.