John, a 45 year old minority, is an employee in a private sector organization. He would like to file a discrimination complaint against his employer. What should he do?
For many employees in the United States like John, there is a need to demystify the legal process so that they can take the right course of action. The U.S. Equal Employment Opportunity Commission (EEOC) avers that any individual with the belief that there has been a violation of his employment rights may file a charge of discrimination against the EEOC. In fact, aside from John himself, another individual, organization, or agency may file in his behalf so that John’s identity would be protected.
It is imperative to understand how the litigation process in United States courts is referred to as an “adversarial” system. The adversarial nature is because of the reliance on the litigants to present their dispute before a neutral fact-finder, according to the US Courts website. By analogy, this neutral fact-finder for employment cases is the EEOC, by virtue of the powers vested in it by Title VII of the Civil Rights Act of 1964. On what ground is John planning to file his complaint? He can choose from several laws but for the purposes of this discussion, what may be relevant to John’s case are Title VII and the Age Discrimination and Employment Act.
Title VII of The Civil Rights Act of 1964
This Act was landmark legislation in creating the Equal Employment Opportunity Commission, in eliminating race segregation and discrimination based on sex. The principle of “promotion from within” is invoked in equity since employers had already taken advantage of incumbent minority and female employees by using them in segregated jobs and often in depressed pay rates (Blumrosen, 1993, p. 74).
The Age Discrimination in Employment Act of 1967 (ADEA)
For persons aged 40 or over, the ADEA prohibits employment discrimination. Sec.623 provides for specific prohibitions against: discrimination in terms of hiring, promotions, wage and retiree health benefits(including a system to calculate the fees and ages); mandatory retirement; and publication of age preferences and limitations in advertisements for hiring.
Equal Employment Opportunity Commission (EEOC)
SEC. 705 of the Civil Rights Act of 1964 provides for the creation, composition, duties, quasi-judicial functions and powers and of the EEOC. Corollary to this is Sec. 706 on the prevention of the unlawful employment practices, formulating the procedure for filing civil actions under the Commission. Pursuant to this, John may file a charge in person or by mail at the EEOC office.
He should fill out an intake questionnaire that contains all the information detailing his charge based on the statutes discussed above. John should also state a clear request for EEOC to act on his complaint. If John is a federal employee, he must refer to the Federal Sector Equal Opportunity Complaint Processing, which is also available on the EEOC website.
What should John’s charge contain? He must state his name, address, telephone number, and the same details for the employer he is complaining against. If there were other employees in a similar situation, John must also allege that in the charge. He must describe the alleged violation and the date of its occurrence, subject to the grounds defined in the statutes above. Before he can file a lawsuit in court, this is the first step that John must accomplish.
To protect his rights, John must ensure that he files the charge with the EEOC within 180 days or about six months from when he was discriminated against. If John anchors his charge on violation of the ADEA, state laws can extend this period to 300 days. If there is a local anti-discrimination law, there is also a 300 day extension. What is crucial is for John to contact EEOC as soon as he believes that his rights are being violated.
Civil Litigation Process – State Level
Sec. 706 refers to the process for John himself. Sec. 707 of Title VII refers to the functions of the Attorney General in determining reasonable cause and placing the complaint under the jurisdiction of the district courts. If reasonable cause is found, John’s case can be filed in Court subject to the rules on dispute resolution.
The Attorney General should file a complaint: “(1) signed by him, (2) setting forth facts pertaining to such pattern or practice, and (3) requesting such relief…against the person or persons responsible for such pattern or practice, as he deems necessary….” He may file with the clerk of court a request for three judges to hear the case with a certification that John’s case is of general public importance.
An important point is on the matter of expediting proceedings. The Judicial Conference on Dispute Resolution (2007) asserts, before John can invoke formal procedures, all reasonable steps to resolve disputes via informal methods should be undertaken. Examples of these include counseling and/or mediation, prior to a formal hearing (p.2).
According to the US Courts website, mediation is a flexible, nonbinding dispute resolution procedure in which a neutral third party facilitates negotiations between the parties. It saves time and money for the litigants — in this case, John and his employer. Also, Mechan (1997) wrote that a discovery case management plan is required at the initial pretrial conference between John and his employer (p.39) so that delays would be avoided. If mediation, counseling and dispute resolution did not prosper, then the chief judge must set the case for hearing.
Civil Litigation Process – Supreme Court
The Supreme Court has jurisdiction over appeals from the final judgment of the district court convened to hear the case of John, as requested by the Attorney General after the intake questionnaire and complaint filed at the EEOC. Subject to the rules on civil procedure, what is important is to guarantee that each party is not denied his day in Court. That, and only that, can help John resolve the legal issue of employment discrimination.
Blumrosen, Alfred W. Modern Law: The Law Transmission System and Equal Employment Opportunity. Wisconsin: U of Wisconsin P. 1993.
Mecham, L. R. (1997, May). United States Courts: Judicial Conference of the United States. The Civil Justice Reform Act of 1990: Final Report on Alternative Proposals for Reduction of Cost and Delay, Assessment of Principles, Guidelines & Techniques. Retrieved November 26, 2007
US Congress. 42 U.S.C. § 2000e  et seq. (1964). Title VII of the Civil Rights Act of 1964. Retrieved November 26, 2007
US Congress. 29 U.S.C. § 621-624. (1967). The Age Discrimination in Employment Act of 1967. Retrieved November 26, 2007 from <http://www.eeoc.gov/policy/adea.html>
The U.S. Equal Employment Opportunity Commission. (Modified: 2007, September 11). Filing a Charge of Employment Discrimination. Retrieved November 26, 2007, from http://www.eeoc.gov/charge/overview_charge_filing.html
United States Courts. ( ) .Litigation Process. Retrieved November 26, 2007
United States Courts. (2006, July). In Resolving Disputes, Mediation Most Favored ADR Option in District Courts. Vol. 38, Number 7. Retrieved November 26, 2007
United States Courts. (2007, August 6). Statement of Work: Model Employment Dispute Resolution Plan Improvements. Retrieved November 26, 2007