Report Offending Behavior To Your Employeer
If you believe that you have been discriminated against based upon gender, race, religion, national origin, age, disability, pregnancy, sexual harassment, or disclosure of genetic information (the prohibited classifications under Title VII of the Civil Rights Act and the Florida Civil Rights Act), you MUST follow any procedures for reporting the discrimination to your employer which your employer has established (i.e. in an employee handbook). If you do not follow these procedures, the United States Supreme Court has decided that the employer will have a defense against any claim of discrimination since you did not provide it with an opportunity to conduct an investigation and take “prompt remedial action”. This is true even if your reason for not wanting to report to your employer is a fear of retaliation.
Cooperate With Any Investigation Of Your Employer
If your employer decides to conduct an investigation based upon your report of alleged discrimination, you need to cooperate. This means that if it wants to interview you or have you provide more details, you need to cooperate or risk that in any lawsuit the employer will claim its affirmative defense based upon your failure to permit it to conduct a proper investigation.
Filing The Charge Of Discrimination
Under Title VII of the federal Civil Rights Act and also the Florida Civil Rights Act, you may file a Charge of Discrimination on forms provided by the Equal Employment Opportunity Commission (EEOC). Its main office in Florida is in Miami. Prior to doing so, you may want to consult with an attorney to ensure preparation of a proper and detailed Charge of Discrimination. Once you or the attorney file the Charge, you should check the box to show that you are “dual” filing with BOTH the EEOC and the Florida Commission on Human Relations (FCHR). The FCHR will defer to the EEOC but you will have legal rights under both federal and state law in any eventual lawsuit. This is important because the remedies are slightly different under both statutes and you want to have a claim under both statutes. In Florida, you must file a Charge of Discrimination within 360 days of the last act of discrimination.
THE EEOC Process (Part 1)
What the EEOC does and what it is supposed to do are different because it is an agency which is VERY understaffed. Typically, the reality of the situation is that the EEOC will review your Charge and send a copy to your employer for a response. You may AMEND your Charge if you are subject to further discrimination or retaliation as a result of filing your Charge. After the EEOC receives the employer’s response, it will typically ask you for any further information you may want to provide. It will then evaluate the information from both sides and determine whether (a) there is cause to believe discrimination occurred, (b) there is no cause to believe discrimination occurred, or (c) it is unable to make a determination about whether there is cause.
THE EEOC Process (Part 2 — Mediation)
The EEOC may send a letter asking if you are interested in mediation. There is no harm in saying “yes” and mediation will only be scheduled if both the employee and the employer send back “yes” responses. If there is a mediation, you should really have an attorney.
The EEOC Process (Part 3 – The Decision And Right To Sue)
You will often have to wait “forever” for a decision by the EEOC because it is so understaffed. If you want to preserve your right to make a claim under Florida, as well as federal law, you must wait at least 180 days after filing your Charge of Discrimination before requesting a “right to sue” letter. After 180 days, at any time you or your attorney may decide to end consideration by the EEOC and may write to ask for a “Letter of Determination” also known as a “Right to Sue” letter. Once you receive the document, a box will be checked as to whether the EEOC believes cause was shown, does not believe cause was shown or was unable to make any such determination.
Reciving Your Right To Sue Letter and Deadline to File A Lawsuit
It does NOT matter which box the EEOC checks as to whether it believes there is cause for discrimination. no cause, or whether it is unable to determine whether cause exists. This is because this decision is NOT ADMISSIBLE in court. It is simply an administrative decision. Typically, the EEOC will find cause in 5-10% of cases, a lack of cause in another 10-15% of cases, and be unable to determine whether cause exists in the vast majority of cases (75-85% of cases). The important point of receiving your letter is that once you receive it YOU HAVE ONLY 90 DAYS TO FILE A LAWSUIT OR YOU GIVE UP YOUR RIGHTS FOREVER.
Filing The Lawsuit
The lawsuit may be filed in either federal or state court if you have dual filed your Charge of Discrimination. Most discrimination cases are filed in federal court for various reasons which can best be explained by an attorney. If you want to pursue your claim in court, you really should consult an attorney as discrimination and/or retaliation claims are complex claims which most people are simply unable to handle on their own with any reasonable prospect for success.
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