In order to bring a claim in federal court, the employee is required to file what is called a charge of discrimination with the EEOC. The EEOC is the Equal Employment Opportunity Commission and they have what I would refer to as a gate keeping function. Basically the EEOC will retain jurisdiction over the complaint for a period of at least 180 days over the state of New York. During that 180 day period the EEOC will do any number of things, one thing that can happen is nothing, basically the EEOC will maintain that file and at the end of 180 days or sometimes there after they will issue the employee with what’s called an issue of rights to sue and that right to sue is basically the employees ticket to go file in federal court a claim of discrimination against the employer. The EEOC however often times will do other things in reaction or as a result of an employee’s filing, one of those things is investigate, they have an investigative arm that has representative that will inquire of the employee and the employer and of the existence of records that could support or refute a claim and they may ask for affidavits or witness statements in order to determine whether there is some valid claim there. Absolutely employers should have representation if in anyway shape or form they are asked to respond to a request from the EEOC to forward information. A, you want to make sure you are complying with whatever that’s being asked of you and B, you want to make sure that you are on point and accurate with what you are providing but finally you want the attorney to be able to and what we do for you is present it in a way that shows that you did not engage in the discriminatory behavior. The other thing which the EEOC can do, which is really a critical function of the EEOC is to mediate the case, what that means is that they try to seek a resolution, a settlement if you will with the employee before the employee sues in court. So the EEOC does serve the function of trying to minimize the number of cases that end up being filed in court and they do that by approaching the case early on in form of a mediation or settlement. In terms of a settlement the employer should absolutely retain an attorney. One of the things that we do at Golden Berg is we always evaluate what your possible exposure is, that’s critical as an employer going forward in this agency situations. You don’t want to end up saying no absolutely not, I will not settle this employee and you end up finding that after three years of litigation its cost you not only a lot in attorney fees and costs in defendant action but now you are facing some type of damage award which depending on the claims the employee is bringing could very well reach a six figure range. So, there are very serious ramifications if you don’t have adequate representation at the beginning to advise you as to whether there is a cheaper less expensive more effective way to resolve the case. The EEOC can be a form of resolution for you in that instance and certainly having an attorney advice at that point in time is critical so that you can avoid the expenses that you would otherwise undergo if you didn't have the appropriate advice from the start.
This informational blog post was provided by Kim Berg, an experienced White Plains Employment Lawyer.