Module 7: What happens when someone files a complaint?

A person who believes that he or she has been discriminated against on the basis of disability in employment can file an ADA Title I complaint with the U.S. Equal Employment Opportunity Commission (E E O C) or with a Fair Employment Practice Agency (FEPA). E E O C is responsible for enforcing Title I of the ADA. E E O C calls the complaint a “charge” and the complainant the “charging party.”

Complaint Procedure

The complaint procedure is complex and will vary depending on the specifics of each case. We do not intend to present every detail, but instead to provide you with a limited overview of the process. There are five general stages:

• Initial assessment
• Voluntary mediation
• Formal investigation
• Conciliation
• Legal action

The initial assessment will determine if the charge has merit. If a charge appears to have little chance of success, or if it is something that E E O C doesn’t have the authority to investigate, E E O C may dismiss the charge without doing an investigation.

E E O C does not offer mediation in such cases. If the charge is not dismissed E E O C notifies the employer that a charge of discrimination has been filed.

In some cases E E O C asks the charging party and employer to take part in their mediation program. Participation in mediation is voluntary. Mediation is an informal, confidential process for resolving disputes by using an impartial third-party (the mediator) who meets with the employer and employee. The mediator has no decision-making authority, but rather tries to assist the parties to resolve their dispute. Participation in mediation does not constitute an admission of a violation of the law.

If the case is not sent to mediation or if mediation does not resolve the problem the charge is given to an E E O C investigator.

How E E O C investigates a charge depends on the facts of the case and the kinds of information it needs to gather. E E O C usually asks the employer to provide a written response to the charge and to answer questions. In some cases, E E O C visits the employer to hold interviews and gather documents. In other cases, E E O C interviews witnesses over the phone and ask for documents by mail. After the investigation, E E O C informs the charging party and the employer about the result.

If E E O C does not find a violation of the law it sends the charging party a Dismissal and Notice-of-Right-to-Sue. If the charging party wants to pursue the case he or she has 90 days from receipt of the notice to file a lawsuit in federal court.

If E E O C does find a violation, E E O C sends a Letter of Determination to both parties and invites the employer to seek resolution through an informal process called conciliation.

If E E O C cannot reach a voluntary settlement through conciliation the case is referred to E E O C’s legal staff (or to the Department of Justice in certain cases).

E E O C legal staff decide whether or not the agency will file a lawsuit.

If E E O C decides not to file a lawsuit, the charging party gets a Notice-of-Right-to-Sue. Again, the charging party has 90 days to file a lawsuit in federal court.

Remedies

Remedies may include hiring, reinstatement, promotion, back pay, front pay, restored benefits, reasonable accommodation, attorneys' fees, expert witness fees, and court costs.

Compensatory and punitive damages (money) may be awarded in cases involving intentional discrimination. Compensatory damages pay for out-of-pocket expenses caused by the discrimination (such as costs associated with a job search or medical expenses) and compensate for emotional harm suffered (such as mental anguish, inconvenience, or loss of enjoyment of life). Punitive damages may be awarded to punish an employer who has committed an especially malicious or reckless act of discrimination.

Fair Employment Practice Agencies

More than 100 states and localities have antidiscrimination laws or ordinances similar to Title I of the ADA. These laws and ordinances are enforced by state or local agencies called Fair Employment Practice Agencies (FEPAs).

An employment discrimination complaint can be filed with either the E E O C or the FEPA. When a person files a charge with either the E E O C or FEPA it is automatically dual-filed under both laws. The dual-filed charges are typically investigated by only one agency – either the E E O C or the FEPA.

Check the Resource Section for a list of all the state FEPAs.

Frequently Asked Questions

1. What information must be provided to file a charge?

The complainant’s name, address, and telephone number; the employer, employment agency, or union’s name, address, and telephone number; the number of employees (or union members), if known; a short description of the event(s) that caused the complainant to believe that his or her rights were violated; and the date(s) of the event(s).


Reference: www.eeoc.gov/employees/howtofile.cfm

2. What are the time limits for filing a charge with the E E O C?

A charge must be filed with E E O C within 180 days from the date of the alleged violation. The filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law.

Reference: www.eeoc.gov/employees/howtofile.cfm

3. What is E E O C's mediation process?

Shortly after a charge is filed, the E E O C may contact both the employee and employer to ask if they are interested in participating in mediation. The decision to mediate is completely voluntary. If either party turns down mediation, the charge will be forwarded to an investigator. If both parties agree to mediate, E E O C will schedule a mediation, which will be conducted by a trained and experienced mediator. If the parties do not reach an agreement at the mediation, the charge will be investigated like any other charge. A written signed agreement reached during mediation is enforceable in court just like any other contract.

Reference: www.eeoc.gov/employees/mediation.cfm

4. What is the cost of mediation?

There is no charge to either party to attend the mediation.

Reference: www.eeoc.gov/employees/mediation.cfm

5. How do Fair Employment Practices Agencies relate to the E E O C?

When an individual files with a FEPA that has a work sharing agreement with the E E O C, the FEPA will dual file the charge with E E O C (meaning E E O C will receive a copy of the charge), but will usually retain the charge for processing. If the charge is initially filed with E E O C and the charge is also covered by state or local law, E E O C dual files the charge with the state or local FEPA (meaning the FEPA will receive a copy of the charge), but ordinarily retains the charge for processing.

If a FEPA has a contract with E E O C, a charging party may request that the E E O C review the determination of the FEPA. E E O C does not review decisions by non-contract FEPAs. The E E O C will conduct a review only if the request is submitted in writing within 15 days of receipt of the FEPA’s determination. The request should include the reason why the charging party is requesting the review (e.g. relevant witnesses not contacted, evidence not considered, or presence of new evidence).

Reference: www.eeoc.gov/employees/fepa.cfm

6. What is the complaint process for federal employees?

The first step is for the job applicant or employee to contact an Equal Employment Opportunity (EEO) Counselor at the agency where the person works or applied for a job. Generally, the EEO Counselor must be contacted within 45 days from the day the discrimination occurred. In most cases the EEO Counselor will give the choice of participating either in EEO counseling or in an alternative dispute resolution (ADR) program, such as a mediation program. If the dispute is not settled during counseling or through ADR, the job applicant or employee can file a formal discrimination complaint against the agency with the agency's EEO Office. The complaint must file within 15 days from the day the job applicant or employee receives notice from the EEO Counselor about how to file.

Reference: www.eeoc.gov/federal/fed_employees/complaint_overview.cfm

This is the end of Module 7.

Final Exam

Course Contents

• Course Introduction
• Module 1: Who has obligations
• Module 2: Who has rights
• Module 3: Reasonable Accommodation
• Module 4: Performance & Safety
• Module 5: Pre-Employment
• Module 6: Medical Information & Confidentiality
• Module 7: Complaints
• Resources