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Employment
Discrimination FAQs
Q.
What kinds of discrimination are prohibited under
federal law?
Q.
What kinds of discrimination are prohibited under state law?
Q.
What is the procedure if an employee pursues a federal discrimination claim?
Q.
What happens if the EEOC decides the case has no merit?
Q.
I received notice of a discrimination claim, but it was not from the EEOC, but from the state discrimination agency. What does this mean?
Q.
I don't think there is anything to this discrimination charge, but I
may be willing to try to settle it for a modest amount so as to avoid extensive legal fees. What are my options?
Q.
I
have received a summons and complaint indicating an employment discrimination lawsuit has been filed against my company. Where do we go from here?
Q.
What kinds of discrimination are prohibited under federal law?
A. Various federal laws prohibit discrimination in employment on the basis of many factors, including:
- Race, color, or national origin
- Religion
- Sex
- Age (if 40 or older)
- Disability
- Military service
- Lack of citizenship, if eligible for employment
- Retaliation for opposition to discrimination
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Q.
What kinds of discrimination are prohibited under state law?
A. State laws also prohibit employment discrimination on the basis of many of the same factors as federal law. The discrimination laws of some states vary from federal law in a variety of ways, including:
- employers covered
- remedial procedures
- damages available
State laws also may cover some additional types of employment discrimination, such as discrimination on the basis of marital status or sexual preference.
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Q.
What is the procedure if an employee pursues a federal discrimination claim?
A. Before filing a federal employment discrimination lawsuit in court for discrimination based on race, color, national origin, sex, age, disability, religion, or retaliation, a person claiming such discrimination must file a charge with the
Equal Employment Opportunity Commission (EEOC).
The EEOC then investigates, obtaining information from the complaining person and possibly other witnesses, and requesting information and a statement of position from the employer.
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Q.
What happens if the EEOC decides the case has no merit?
A. The EEOC's conclusion on the validity of a discrimination charge is not determinative.
The employee may file suit even if the EEOC finds no merit to the charge.
Employers may
therefore be tempted to economize by dealing directly with the EEOC
without legal assistance and/or by responding incompletely to it, hiring counsel only if a lawsuit is later filed. Such an approach can be risky and ill-advised.
A thorough response to a discrimination charge prepared by an experienced employment attorney
may improve the chances of a favorable EEOC determination. Such a determination frequently discourages the employee from filing a lawsuit.
Additionally, information the employer provides to the EEOC will be available to the
employee and his or her attorney if a lawsuit is later filed. Inadequate investigation of the facts supporting the employer's position and incomplete articulation and advocacy of that position can prove costly later -- if the employer has to change its story later this inconsistency may be used as evidence against it.
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Q.
The notice of a discrimination claim my company received was not from the EEOC, but from the state discrimination agency. What does this mean?
A. Sometimes employment discrimination charges are investigated by a state agency rather than the EEOC, with the assignment being made pursuant to a work-sharing agreement between the state agency and the EEOC.
Often, the charge is treated as being both a federal and state charge. Because state laws and procedures vary, it is desirable to consult an attorney knowledgeable in the laws of the particular state.
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Q.
I don't think there is anything to this discrimination charge, but I
may be willing to try to settle it for a modest amount so as to avoid extensive legal fees. What are my options?
A. You can always attempt a settlement. For a number of reasons, if you are interested in doing so early in the case, your best option is probably to participate in the
EEOC's early mediation program, which is free of charge.
Mediation can result in an economical settlement before investment of substantial time and attorneys' fees.
If it does not, it may nonetheless aid in
understanding the employee's position, view of the
facts, and expectations.
If this option is elected,
thorough preparation for mediation, including careful factual and legal analysis of the charging party's claims and
the employer's defenses, and are essential.
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Q.
I have received a summons and complaint indicating an employment discrimination lawsuit has been filed against my company. Where do we go from here?
A. First, within a relatively short deadline, the Company will be required to file a formal
answer, in which it admits or denies each specific allegation, and sets forth its defenses.
Next, if the action is in federal court, there will be conferences with the opposing attorney and then with the
judge, resulting in the establishment of a trial date and a schedule of deadlines leading up to trial.
Most of the time before trial will be spent in the
discovery phase, which is just what it sounds like. Each side attempts to discover relevant facts by means such as interrogatories (written questions), document requests, and depositions (oral questioning of witnesses recorded by a court reporter and possibly also video-recorded).
Following discovery the employer
may file a motion for summary judgment seeking to have the judge dismiss all or part of the action
without trial, based on information obtained in Discovery.
Increasingly, courts may require an attempt to reach settlement using
mediation, in which a neutral third party seeks to help the parties negotiate a resolution.
If the case must go to trial, a substantial amount of trial preparation work must be done.
Trial is typically to a jury, and the range of possible outcomes is very large, from zero (defense verdict) to the relatively rare multi-million dollar verdicts one reads about periodically. According to one source, the mean 2003 award, when employees prevailed, was about $550,000, and the median was $250,000.
If the employee prevails, the employer may also be
required to pay the employee's attorney's fees.
Following trial, there may be post-trial motions and appeals.
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