Private Sector Employee Complaints - Frequently Asked Questions

Information provided below mainly pertains to discrimination complaints arising out of private employment. Refer to the federal EEO FAQ for completely different process of complaint, investigation, and hearing involving discrimination claims arising out of the federal employment.

➤ Do I need a lawyer to file a charge?

• No, you do not need a lawyer if you are filing at an administrative agency.  However, a lawyer or consultant can identify the issues, analyze the strength and weakness of your case, draft and file the complaint in the strongest possible terms, negotiate settlement on your behalf, and can represent you in dealing with the administrative agency and  with the employer's representative.

➤ What is an administrative agency?

• It is a government agency receiving and investigating complaints of discrimination.  EEOC is a federal agency and usually has a work sharing agreement with the state agencies or with the municipal agencies at local level.  As in any other government agencies, these agencies are understaffed and overwhelmed with large case load.  Although they are supposed to be neutral, many investigators tend to be business friendly, unless you have a compelling evidence in your favor.  In other words, the playing field is not even.

➤ Can I file at the court rather than at the administrative agency?

• No, the state and federal courts require that you file at the administrative agency first and get a right to sue letter from EEOC or other state agency to file at the court.  You need to "exhaust the administrative remedy" before exercising your right to go to court.  Usually the award by the court (if you win) is greater than by the administrative agency.  But you may have to bear the attorney fee and, in some cases, the penalty, if you lose at the court.

➤ How long can I wait before filing a charge?

• Most states require that a charge be filed within 180 days of the "act of harm."  You can file at EEOC
  (federal agency) within 300 days of the act of harm.

➤ What is the "act of harm"?

• It is the discriminatory action you suffered, such as termination from job, denied promotion, denied hire, unequal pay, harassment, unfair discipline, denied accommodation, etc.  You must allege that you received an act of harm based on (or because of) your race, age, sex, disability, national origin, ethnicity, religion, etc. or based on the fact that you participated in or cause an investigation of discrimination, or because you complained or reported discrimination or harassment.

➤ What can I demand as a settlement?

• Anything that can be agreed upon between you and the employer.  Examples: a neutral letter of reference, purging or sealing of your personnel records, lost wages, lost benefits, out of pocket expenses due to lost benefits, reinstatement, transfer, policy implementation or change, sensitivity and harassment prevention training, etc.  A settlement depends on the terms that the employer is willingness to offer you and the terms that your are willingness to accept.  It may also depend on the strength of your case or on the employer's decision to resolve in a pragmatic way or on its decision to avoid legal cost ($5,000 to $10,000 or higher at the administrative level).

➤ What is a full remedy?

• It is what it takes to make you whole, as if no discrimination had taken place.  In other words, a full remedy is everything you could have had or were entitled to, had you not been discriminated against. In some cases (such as housing discrimination) a full remedy may include pain, suffering, and humiliation. Most employment cases filed at the administrative agencies don't include pain, suffering, punitive or compensatory damages.  You are entitled to a full remedy only if you win, of course.  The court may be able to award you more than what an administrative agency may be able to award you, if you win.  How to prove compensatory damages.

➤ What is a standard settlement?

• There is no such a thing.  But if you are terminated from an employment as result of discrimination, for example, you may want to request reinstatement with the lost wage and benefits.  If you do not want to be reinstated (or if the employer does not want you back), you may want to ask for the lost wage and the salary differential between the next (or current) job and the previous job (where you were discriminated against), if the previous job paid you more.

➤  Is it good to settle rather than wait for a determination on my case?

• Depending on the administrative agency, it may take months, if not years, until a determination is made; and the determination may not be favorable to you.  In general an amicable settlement is better than winning. And the administrative agencies may pressure both parties to settle.  While you don't want to be pressured into a settlement you don't like, depending on your circumstances, you may want to be pragmatic and compromise to settle.

➤ How long will it take to get a determination on my case?

• It really depends on the agency's caseload and the merits of your case.  Most agencies carry a large caseload and/or are short-staffed.  Some agencies triage the cases when they come in; some don't.  The length of investigation may also depend on the caseload of each investigator.  It might be a good idea to ask the investigator as to what her caseload is and what the average age of the cases is in her office.  See EEO process for federal employment cases; EEOC process for private employment cases.

➤ What is a "probable cause" determination?

• It is a determination made by the administrative agency at the conclusion of its investigation: that there exist, more likely than not, a cause to credit your allegations of discrimination.

➤ What happens after a "probable cause" determination is made?

• The process varies from one agency to another.  But, typically, the employer is given a  chance to conciliate the matter (allowing the Charging Party to recover the losses incurred by discrimination). If the conciliation fails, the case can either be referred to a public hearing or filed at the court.

For free consultations, please feel free to call Mr. Lee at (215) 947-0243

Disclaimer

• Mr. Lee is not an attorney but can represent clients in federal administrative processes, including EEOC hearings and MSPB hearings.
• Mr. Lee does not practice law and cannot provide attorney-client protection privileges.  However, as any union shop steward can, Mr. Lee can represent federal employees at any administrative proceeding including those referenced above.
• Mr. Lee cannot and does not represent clients at court proceedings.