NEWSLETTER

If you just received a charge of discrimination from the Equal Employment Opportunity Commission ("EEOC"), you are not alone.  During the EEOC's 2012 fiscal year, 99,412 charges of discrimination were filed.  See http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm.  The EEOC has targeted the restaurant industry as the single largest source of sexual harassment cases.  Some reports claim nearly 37 percent of all sexual harassment charges filed by women with the EEOC come from the restaurant industry.  FordHarrison's Restaurant Industry Practice Group has written this article to explain what an EEOC charge of discrimination is, how you should respond to it, and what effects a charge may have on your organization.

The EEOC is an independent federal agency originally created by Congress in 1964 to enforce Title VII of the Civil Rights Act of 1964, as amended ("Title VII").  Over the years, Congress expanded the EEOC's power to enforce several other federal discrimination laws as well.  The EEOC now enforces the following laws through its 53 field offices:

• Title VII, which prohibits employment discrimination based on race, color, religion, sex, and national origin and covers private employers with 15 or more employees as well as certain other entities.    
• The Equal Pay Act of 1963 ("EPA"), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.  The EPA covers all employers who are covered by the Fair Labor Standards Act ("FLSA").  Virtually all employers are subject to the provisions of this Act.
• The Age Discrimination in Employment Act of 1967 ("ADEA"), which prohibits discrimination against individuals age 40 or older and applies to private employers with 20 or more employees as well as certain other entities.
• Title I and Title V of the Americans with Disabilities Act of 1990 ("ADA"), which prohibit employment discrimination against qualified individuals with disabilities in the private sector and in state and local governments.  The ADA has the same coverage prerequisites as Title VII.
• Sections 501 and 505 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), which prohibit discrimination against qualified individuals with disabilities who work in the federal government.  The Rehabilitation Act covers federal employees and incorporates the requirements of the ADA.
• The Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.  
• The Genetic Information Nondiscrimination Act of 2008 (GINA).  This law has the same coverage prerequisites as Title VII.

 These laws prohibit discrimination in almost all aspects of employment including:

• hiring and firing;
• compensation, assignment, or classification of employees;
• transfer, promotion, layoff, or recall;
• job advertisements;
• recruitment;
• testing;
• use of company facilities;
• training and apprenticeship programs;
• fringe benefits;
• pay, retirement plans, and disability leave; and
• other terms and conditions of employment.

Other discriminatory practices include:

• harassment on the basis of race, color, religion, sex, national origin, disability, or age;
• retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;
• employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities; and
• denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability.  Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.

Individuals who believe they have been subjected to discrimination have, depending on the state, either 180 or 300 days from the allegedly discriminatory action to file a charge of discrimination with the EEOC.  Individuals who dual-file a charge of discrimination with a state or local agency are given 300 days from the incident to file an EEOC charge. 

The EEOC will then notify the employer that a charge has been filed against it and may offer the parties free voluntary mediation with an EEOC mediator.  The EEOC usually will not offer mediation if it is apparent from the face of the charge that it has no merit (for example, it alleges a violation of a law not enforced by the EEOC or is untimely) or if, in the EEOC's opinion, it is more appropriate to pursue the matter through litigation or other enforcement means due to the seriousness of the allegations or the specific area of concern involved.  The EEOC usually will, however, offer mediation if, from the face of the charge, it is not clear whether the allegations have merit.  If the parties agree to mediation, the EEOC will not investigate the charge and the employer does not need to respond to the charge pending the outcome of mediation.  

If the EEOC does not offer mediation or mediation does not resolve the case, the agency will assign an investigator who usually will require the employer to file a position statement and respond to a request for information within a defined period of time.  Depending on which EEOC office you are dealing with, the agency may grant a request for a brief extension of time to respond to the charge.  You should take great care in responding to the charge and retain qualified employment counsel to assist you in preparing a response because any assertion you make in the position statement may later be used against you in court.  Moreover, a carefully crafted response may alleviate the need for further investigation or preclude a request for onsite interviews of company decision-makers.  The employer's response may include witness affidavits, written documentation and other evidence rebutting the allegations of discrimination.  If the employer fails to respond to the charge, the EEOC may use its subpoena power to compel production or use the failure to support an adverse inference in a cause determination.  After the employer submits its response, the investigator usually will interview the charging party for his or her side of the story.  As a result of this interview, the investigator may request additional information from the employer or request witness interviews.   

After the investigator has completed the investigation, the EEOC will issue a determination.  If the EEOC determines that there is no cause to believe discrimination has occurred, the agency will issue a Dismissal and Notice of Right to Sue.  Contrary to popular belief, even if the EEOC made a no cause determination, the charging party may still file a federal discrimination lawsuit within 90 days of the dismissal.  If, however, the EEOC determines that there is cause to believe discrimination has occurred, it may attempt to have the parties engage in conciliation.  Conciliation is a form of settlement negotiations in which the EEOC acts as the go-between for the parties.  The EEOC usually will request that the employer pay the charging party back pay, compensatory damages and punitive damages to settle the charge.  The EEOC may also request that the employer reinstate the employee, post a notice that it has violated the law, provide its employees with discrimination training, and/or provide other non-monetary relief.  Employers should take note that the EEOC usually refuses to include confidentiality provisions in the conciliation agreement and may publicize any settlement.  If conciliation efforts fail, the EEOC may issue the charging party a Notice of Right to Sue or in rare circumstances file a lawsuit itself. 

The cost of employment litigation can easily reach into the tens of thousands of dollars, even if the employer prevails.  Employers should take charges of discrimination seriously regardless of the veracity of the allegations.  Our experience has shown that proactive measures, such as well-drafted employment handbooks and employee discrimination training, can often help defeat or even prevent charges of discrimination.

If you have any questions regarding this Newsletter, please contact the author, Todd Aidman, who is a partner in our Tampa office and the co-chair of FordHarrison's Restaurant Industry Practice Group at taidman@fordharrison.com, or the FordHarrison attorney with whom you usually work.