When the U.S. government passed the Civil Rights Act of 1964, it created an agency to investigate complaints of discrimination – the Equal Employment Opportunity Commission (“EEOC”). Before anyone can file a discrimination lawsuit in federal court based on any of these categories, they first must file a “Charge of Discrimination” with the EEOC. Filing the charge is supposed to give the EEOC (and the federal government) more information about discrimination allegations throughout the country, and give the EEOC a chance to investigate. If you worked in New York, you have 300 calendar days from the date of the last discriminatory act to file a charge with the EEOC. In other states the filing deadline may be 180 days depending upon whether there is a state or local agency also enforcing anti-discrimination laws. Find your local EEOC office here, which should be able to give you more guidance on whether you have 300 or 180 days to file your charge. Keep in mind: if you don’t file your EEOC charge in time, you lose the ability to sue. If you’re crunched for time or confused about how long you have, or what your “last date” of discrimination is, contact a lawyer.
There two ways to file an EEOC charge: in person at a local EEOC field office or by mail. If your state or city has a local agency, like the New York City Commission on Human Rights, you can also file a charge there, and they will file it with the EEOC on your behalf. Note that you cannot file an EEOC charge over the phone or on the internet, though the EEOC does allow you to fill out an online questionnaire. However, the questionnaire is not the same thing as an official EEOC “charge,” so you still need to file a charge! But the questionnaire can be useful in helping you to figure out whether the EEOC has jurisdiction over your claim and whether your employer’s actions appear to violate federal anti-discrimination laws.
What information should you include in the charge of discrimination? At a minimum, your charge should state:\
- Your name, address and telephone number;
- The employer’s name, address and telephone number;
- The number of people employed by the employer (the employer must have either 15 employees, or for age discrimination claims, 20 employees, in order for you to be protected by the federal equal employment laws);
- What harmful action did the employer take against you (e.g. you were fired, demoted, not hired, harassed);
- Why you think that the employer took this action against you because of your race, color, religion, sex, pregnancy, national origin, age (40 or older) or disability (e.g. the employer promoted a much younger employee even though I was more qualified; or, the employer denied me a reasonable accommodation for my disability; or, I was fired soon after I told the employer that I was pregnant);
- When the discriminatory events took place;
- Your notarized signature.
Do you need a lawyer to file an EEOC charge? You don’t have to have one, but it sure helps.
Here are some of the things that a lawyer will do in helping you prepare an EEOC charge:
A lawyer may include information in the charge that you did not recognize as being helpful to your case. As an example, if you claim that you were denied a promotion because of your race, the fact that the employer did not have written guidelines describing the qualifications for the position is important. Why? Because without those guidelines, a manager is free to rely upon his or her own stereotypes and biases in making the decision who to promote. This is something that you might miss without a lawyer helping you.
A lawyer may see additional legal claims that you might have overlooked. For instance, you may have complained about a sexually hostile work environment but left out the fact that you were paid less than men doing your same job. It is critical that you include all the claims that you may have against the employer in the EEOC charge because, if you eventually file a lawsuit, you won’t be able to make any legal claims not found in your EEOC charge.
A lawyer may also draft the charge in such a way that it blunts certain defenses the employer might bring. For instance, in defense of a sexually hostile work environment claim, the employer may claim that after learning of your complaint, it took effective action to stop the harassment by firing the harasser. But there may be more to the story than that. What if the employer sat on your complaint for three months before doing anything about the harassment? Or, what if the employer should have prevented the harassment in the first because this same male worker had sexually harassed other female workers? This is the kind of information that a lawyer is good at ferreting out and including in the charge.
The goal of a well-written EEOC charge is to convince the EEOC that your employer discriminated against you, so that the EEOC may help to settle the case or give you a “probable cause” determination. But equally important is the goal of showing your employer (and their lawyer) that you have a good case. If you present your case clearly, and the employer can see that they broke the law, the employer will be more likely to settle your case, which saves time and money for everyone. Even if your case is rock solid, unless you can persuasively convince the other lawyer of that fact early, you may be drawn into lengthy litigation which could have been more easily cut short at the outset.
However, if you cannot find a lawyer, or cannot find a lawyer in time, don’t be deterred. There is absolutely not requirement that people have lawyers to fill out their EEOC charges. And remember, keep an eye on the calendar!