Overview of EEOC Complaint Process

The U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for enforcing federal laws relating to employment discrimination.  In most situations, employees are required to “exhaust administrative remedies” (i.e., file a complaint with the EEOC) before they can file suit against their employer. The EEOC refers to an employee complaint of discrimination as a “charge of discrimination” or simply a “charge” for short.

The first thing to recognize when you receive notice of such a charge is that it does not mean that the EEOC is accusing you of anything or that federal government has filed “charges” against you in any way.  Every employee complaint is treated as a “charge” and the employer is always given notice of it. Often, the EEOC will dismiss a charge immediately because it is facially apparent that there has been no violation of any federal law or that the complaint is time-barred.

If the EEOC does not immediately dismiss a charge, it will assign an investigator and commence an investigation.  This investigator may ask you submit a statement; supply information; make witnesses available, and/or permit an on-site visit.  You are not required to have attorney assistance in this process but it can be valuable and cost effective.  Experienced counsel can guide you away from making mistakes that may be difficult or impossible to “undo” later.

If you do not cooperate with the EEOC investigation, the EEOC has the power to subpoena information from you.  But this does not mean that you cannot negotiate with the investigator to limit requests in a reasonable manner.  The investigator should also answer any questions you have about the process and status of the investigation.

Once the investigator has completed the investigation, the EEOC will make a determination on the merits of the charge. Initially, there are two possibilities. If the agency determines that there is no reasonable cause to believe that discrimination occurred, the employee will be issued a letter called a “Dismissal and Notice of Rights” stating that the employee has the right to file a lawsuit in federal court within 90 days from the date of receipt of the letter. The employer will also receive a copy of this document.

The other possible outcome is that the EEOC may issue both parties a “Letter of Determination” stating that there is reason to believe that discrimination has occurred and inviting the parties to engage in a “conciliation” process. Conciliation is defined by statute to mean  “informal methods of conference, conciliation, and persuasion.” This is a voluntary process and may allow disputes to resolved without any admission of liability.

If conciliation is not successful, there are two possible outcomes.  The first is that the EEOC will file suit directly against the employer in federal court.  As a practical matter, this is most likely to occur in situations where a large employer is believed to be engaging in wide-spread discrimination.  Suits against small employers for isolated incidents of discrimination are rare.

The more common outcome is for the EEOC to decide not to litigate and to furnish the employee with a “Notice of Right to Sue” letter.  As the name implies, this gives the employee the right to proceed in court.  Any lawsuit must be filed within 90 days of receipt of the letter.

Note that the foregoing process can result in two different letters that are commonly referred to as “right to sue” letters— one where the EEOC has found no discrimination and one where it has found discrimination but has determined not to pursue litigation directly.