Dr. Jillian T. Weiss

EEOC File 13: Waiting for Godot

Filed By Dr. Jillian T. Weiss | February 12, 2013 10:42 AM | comments

Filed in: Living
Tags: EEOC, United States Equal Employment Opportunity Commission, Waiting for Godot

A country road. A tree.


Estragon, sitting on a low mound, is trying to take off his boot. He pulls at it with both hands, panting.

He gives up, exhausted, rests, tries again.
As before.
Enter Vladimir.

(giving up again). Nothing to be done.

(advancing with short, stiff strides, legs wide apart). I'm beginning to come round to that opinion. All my life I've tried to put it from me, saying Vladimir, be reasonable, you haven't yet tried everything. And I resumed the struggle.

Thus begins Samuel Beckett's classic, Waiting For Godot, which reminds me a lot of filing a complaint with the EEOC.

It's important to think about which government you want to file your employment discrimination case with, as I detailed in my last post. If you decide to go with the federal government, then you have to first file with the United States Equal Employment Opportunity Commission, the "EEOC."

Appearing at the EEOC

You have to actually appear at an EEOC office if you want them to help you with the complaint. You can find your local EEOC office and hours of operation here. Each field office has its own procedures for appointments or walk-ins. However, bigstock-Young-people-are-waiting-in-a--29864336.jpgyou can call to get the process started, or mail a letter to your local field office. The number for all of them is the same: 1-800-669-4000. Make a sandwich or open the daily crossword, because you will be on the phone for a long time. You can get more info about filing here.

Keep in mind that, even if you call or mail to get things started, you still eventually have to show up at the office to sign your complaint before a notary. Until that complaint is signed and notarized, there is no official complaint on record. Anything happening prior to 180 days before your official complaint (or 300 days in some states) is not within the statute of limitations, unless it is part of a continuing pattern of discrimination. Thus, the sooner you get your official complaint signed and notarized, the better.

The EEOC has an online assessment tool to help you with filing your claim. You can't file the claim online, but this assessment tool asks you appropriate questions to figure out how long you have to file the claim, and where your closest field office is. It will also allow you to print out the intake questionnaire that you would have to fill out on paper at the EEOC office. If you use this online tool, either mail the intake questionnaire to the local office that it tells you, or call them and make an appointment, and bring the intake questionnaire with you.

You should also bring to the EEOC office any other documentation you have about your claim, like notes that you took regarding the incidents, with dates and times and who said what, and who the witnesses are and where they can be found.

Once they prepare your official claim, you have to sign it before a notary at the EEOC office. Sometimes, if they are not overloaded and the case is fairly simply, they will print it out and have you sign it right then and there. Sometimes, they will need to prepare it later, and you have to go back to sign it. Make sure you get the names of the people you deal with at the EEOC, so if something happens and your claim disappears, you know who you spoke to.

The Process After Filing Your Claim

A claim number is then assigned, and you should make sure you get this number and put it in your "EEOC" file. You will need that number to follow up on the case. An investigator is assigned to the case, and eventually, they should contact you to talk to you about the case. If you don't hear anything for a month, you should call the EEOC and find out which investigator is assigned to your case. Send them a short letter to follow up and request an interview. Otherwise, your case may be lost in the shuffle, and all of a sudden, it's two years later, and you have no idea whom to contact.

After the investigator is assigned, and contacts the Respondent (the company you are charging with discrimination), the Commission tries to mediate the case. This means that you and the company are encouraged to meet at the EEOC's offices, along with an EEOC mediator, and to agree on a resolution to the case. Sometimes this works, and I have negotiated a settlement in one case at this phase. The settlement can include a monetary payment (which companies usually don't want to do), reinstatement to your job, transfer to another job, or a promotion, depending on what you are asking for. If the two parties are too far apart, however, in terms of what they believe should be done, then the mediation is not likely to succeed. However, I note that my experience is that a bad settlement is better than a good judgment.

If mediation fails, or the parties refuse it, the Respondent sends a position statement to the EEOC. In some offices, the position statement is shared directly with you. In other EEOC offices, a summary of the position statement is sent to you. You will be given a certain amount of time to respond in writing, usually about a month or so. The investigation may continue, meaning that the investigator is interviewing witnesses. After a period of time, usually between 1-2 years, the investigator makes a decision about whether your case shows enough evidence, and sends to you and the company one of two things: either 1) a notice of dismissal and a right to sue letter, giving you 90 days to hightail it to federal court, or 2) a decision indicating that the Commission believes there is enough evidence to sustain a charge.

If the Commission believes there is enough evidence to sustain a charge, the case enters the "conciliation" phase. You and the company are encouraged to sit down together again, at the EEOC offices, with an EEOC conciliator, to see if an agreement can be reached to settle the case. The only difference about conciliation, and the previous mediation, is that there are more facts that have been established, and the EEOC believes you, so you have more leverage. However, if the company believes that the EEOC has misunderstood the case, and that it will prevail in court, and that its litigation costs will be less onerous than admitting wrongdoing and giving you what you request, then conciliation may fail.

If conciliation fails, then the EEOC issues you a right to sue letter, and you can hightail it to federal court within 90 days.

One important note: In some EEOC offices, you can request a right-to-sue letter before the EEOC investigation is complete. That letter gives you the right to proceed to federal court within 90 days. Some offices let you request this right away, and others make you wait several months. But it is important to know this, because if you decide you prefer to go to court sooner, and avoid the wasting time at the EEOC, you can.

My Experience With The EEOC

Let me tell you about some of the cases I have, and how long they have been waiting. They all involve discrimination against transgender employees, with one exception.

1) Case #1 was filed with the EEOC around February 2011. I received the position statement of the respondent a few months later, and submitted my rebuttal. We were called in for a short interview with the investigator about six months later. That investigator asked a series of questions for about 30 minutes, and we left the office. Although I felt that the harassment was quite clearly based on gender stereotypes, the EEOC disagreed, and a right to sue letter was issued about a year from the initial filing.

2) Case #2 was filed with the EEOC around June of 2011. My client and I had a series of telephone conference interviews with the investigator, taking about 5-6 hours, to detail all of the facts. About six months after filing, I received the position statement of the respondent, and submitted my rebuttal. The case was transferred to another investigator, and the voluminous notes from the previous investigator were not that helpful to the new investigator, so we had a telephone conference with the new investigator to answer her questions. She appeared to be both cordial and competent, and the investigation is ongoing. In response to my last letter inquiry, I received a response that said she would let us know if anything happened, but that it was not necessary to contact her until that time.

3) Case #3 was filed with the EEOC around September, 2011. Around six months later, I received a position statement from the Respondent, which I answered. Neither I nor my client have had a conversation with the investigator, and I have heard nothing specific about the progress of the case, although I regularly follow up with letters about once a quarter.

4) Case #4 was filed with the EEOC around January 2012. Around six months later, I received a position statement from the Respondent, which I answered. Neither I nor my client have had a conversation with the investigator, and I have heard nothing specific about the progress of the case, although I regularly follow up with letters about once a quarter.

5) Case #5 was submitted to the EEOC in January 2010, prior to my involvement, but the EEOC told the employee that she was not protected because of her transgender status, which was clearly wrong. She went back to the EEOC after hearing something on the news about another trans case, and I got involved after the right to sue letter was issued in early 2012. The letter said that the case was not filed within the appropriate time period after the discrimination, which would have doomed the case completely. I requested reconsideration from the District Supervisor on the grounds that the EEOC had made a mistake in rejecting the case the first time around. After receiving an ambiguous denial, I asked the Chair of the Commission in Washington DC for a reconsideration. I am told that the last time the Commission reconsidered a case in Washington DC was 12 years ago. Fortunately, I received a letter in response, stating that, although the Commission could not change the finding that there was not enough evidence for it to proceed, the Commission found that the case was filed in a timely manner.

I have a few other cases, but they are early in the process.

The only problem with requesting a right-to-sue letter is that you have to file your complaint in federal court within 90 days after receiving it, or else your claim is forever barred, except for very unusual circumstances. As I have previously noted, courts and court clerks do not provide advice on how to file and will not meet with you. They require complaints in very specific legal formats, and they must contain all sorts of information, such as why the court has jurisdiction. While courts generally permit pro se plaintiffs -- nonlawyers who file their own cases -- more latitude, that only goes so far. If you are going to file in court on your own, you should think honestly about your ability to research the court's requirements on the internet, your ability to read fairly complicated legal materials, and your ability to write and follow directions. Many courts have pro se manuals designed to help people file their own complaints. These are extremely useful, but they are somewhat complicated and lengthy, so keep that in mind.

Note: I note that the preceding is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction, after hearing all of the facts and circumstances in a particular case. The following is drawn from my generalized experience, and you should not assume that it is going to be beneficial to you in your particular situation. My intent is only to be helpful in formulating your own plan of action in a general way. Waiting graphic via Bigstock.

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