Employers often face the dreaded claim against their company, a claim that the entity, in some form, discriminated against an employee. Aside from worrying about a claim coming, employers often do not understand the process involved in dealing with these claims and the deadlines and process an employee goes through that can affect an employer’s responsibility to deal with a discrimination claim.
Under Federal law, employees in protected classifications cannot be discriminated against at work because of an employee’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. If an employee feels there is disparate treatment in their employment related in no manner or respect to their performance, employees can file a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). All of the laws enforced by EEOC, except for the Equal Pay Act, require an employee to file a Charge of Discrimination before the employee can file a job discrimination lawsuit against the employer.
In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person's identity. There are time limits for filing a charge (Federal employees and job applicants have similar protections, but a different complaint process in those instances). If an employee files Charge of Discrimination Complaint with the EEOC, the EEOC will investigate the matter and require the employer to file a response to the EEOC charge. The employer will need to investigate and provide a written response explaining its position in the matter. Nevertheless, employers do not have to wait for the entire process to end (NOTE: there are time limits the aggrieved filer must follow that could bar a claim). Given the employer’s position in the matter, it is always best to attempt to push to try to settle the dispute through mediation because it is generally offered and recommended by the EEOC given the plethora of EEOC charges the organization deals with on a daily basis. However, settling may not be the best bet for the employer but it is good to know that it is an option available.
Mediation is an informal and confidential way to resolve disputes with the help of a neutral mediator. If the case is not sent to mediation, or if mediation doesn't resolve the problem, the charge will be given to an investigator. If an investigation finds no violation of the law, you will be given what is called a “Notice of Right to Sue..” This notice gives employee notice that the EEOC may or may not have found wrongdoing by the employer but after an intensive investigation and process, the employee now has permission to file suit in a court of law. If a violation is found, the EEOC does attempt to reach a voluntary settlement with the employer. If the employer and employee reach a settlement, the case will be referred to the EEOC’s legal staff (or the Department of Justice in certain cases), who will decide whether or not the agency should file a lawsuit on the employee’s behalf; otherwise, as stated, the employee will be granted a Notice of Right to Sue.
Employers need to be aware that if a charge appears to have little chance of success, or if it is something that the EEOC found no wrongdoing or don't have the authority to investigate, the EEOC may dismiss the charge without doing an investigation or offering mediation. Nevertheless, employers may not be out of the woods yet if the EEOC route doesn’t work out for an employee, many states and local jurisdictions have their own anti-discrimination laws, and agencies responsible for enforcing those laws. In Florida, the Florida Civil Rights Act (FCRA) (Sections 760.01-760.11) is an alternative remedy for an employee to seek relief under.
The FCRA is drafted similarly to Title VII; however, the FCRA has some significant differences. The definition of “employer” in the FCRA is similar to that in Title VII with regard to it being a discrimination statute for employees to seek relief under; however, under the FCRA, an “employer“ is referenced to being engaged in commerce and an employer must have a minimum of 15 employees or more working for each working day in each 20 or more calendar weeks. It is important to be aware that dodging the EEOC doesn’t necessarily mean an employer is in the clear; this statute is often used as a fallback statute for employees still pursing a claim.
Despite the foregoing, there are crucial time limitations involved here than could act as a bar to relief. Where the discrimination took place can determine how long you have to file a charge. For an employee to preserve their claim under state law in Florida, a claim must be filed with the FCRA within 365 days of the date the employee believes he/she was discriminated against. To preserve a claim under federal law, an employee must file with the EEOC (or cross-file with the state agency) within 300 days of the date the employee believes he/she was discriminated against.