Q: What happens if the employee goes to an outside agency or a court?
A: Employees are required to go through an administrative process before going to court for all civil rights claims. The employee must file a “charge” with either the federal Equal Employment Opportunity Commission or the state civil rights agency. Depending upon the state, this charge must be filed within 180 or 300 days of the last discriminatory action. If an employee fails to file a charge in time, he or she will not be able to bring a claim. If the employee tries to skip this process and go directly to court with a civil rights claim, the court will reject the claim.
Once a timely charge is filed, the agency generally offers the parties an opportunity to resolve the charge without investigation through mediation. If mediation fails or is declined, the agency will investigate.
The employer will receive a copy of the charge and be given an opportunity to respond with a “position statement.” The agency may request information and documents, interviews witnesses, or conduct onsite visits as part of its investigation. At the close of its investigation, the agency will make a finding of whether there is probable cause to believe that unlawful conduct occurred and issue its decision. Whatever the decision, the employee will be given a notice of right to sue allowing him or her to bring the claim to court within the next 90 days. If the employee does not do so, he or she cannot bring the claim.
In rare, but egregious cases, the agency may decide to skip this process and sue the employer on the employee’s behalf. When that happens, the employer is contacted by EEOC attorneys.