Employers are understandably concerned that, with the #MeToo movement, past acts of harassment could lead to lawsuits and liability.
The process to bring a claim for harassment against an employer is unconventional.
A healthy knowledge of the process will empower employers and employees to evaluate rights of workers and risk of liability to organizations.
Assume an employee at your organization tells you, “I’ve been harassed and I’m going to sue you.”
This might lead an employer to believe that the employee is going to file a lawsuit in court, but under federal employment law, the employee is mandated by law to pursue a different path.
An employee who feels she or he has suffered discrimination or harassment at work due to a characteristic protected by federal law cannot simply go to federal court and file a lawsuit.
The employee must first have the claim investigated by the Equal Employment Opportunity Commission, a federal agency that enforces federal discrimination laws to include:
- Title VII of the Civil Rights Act, which covers employers of 15 or more employees and protects against discrimination or harassment based on race, gender, national origin, color and/or religion, and requires reasonable accommodation for religion;
- the Americans with Disabilities Act, which covers employers of 15 or more workers and protects against discrimination or harassment, and requires reasonable accommodation, for individuals with a disability; and
- the Age Discrimination in Employment Act, which covers employers of 20 or more workers and protects against discrimination and harassment based on age 40 and over.
In Virginia, an employee has 300 days to file a claim with the EEOC if the employee feels a violation of federal employment law has occurred, to include sexual harassment.
For harassment, the EEOC recognizes a “continuing action” that would allow the worker to make a claim for prior acts that occurred before the 300-day window so long as the most recent behavior that led the employee to feel aggrieved occurred within the past 300 days.
For an act of discrimination, the law does not recognize “continuing action.” For example, if an employee did not receive a promotion in 2015 and then again three months ago was denied a promotion due to age, the worker could file a claim of discrimination only based on the most recent promotion denial, not the one in 2015.
However, if an employee suffers sexual harassment in 2015, and then additional acts occur, including within the past 300 days, the employee could claim that all the acts dating back to 2015 led to the hostile work environment, depending on the frequency and intervals between actions.
After the claim is filed with the EEOC, the employer may have the chance to mediate a fair resolution.
In the alternative, the EEOC will investigate the claim and give the employer the opportunity to provide its version of what happened in a position statement. The employer has the opportunity to hire an attorney but also can file the response without one.
At the conclusion of the investigation, the EEOC may issue a “for cause” finding, which means the EEOC believes that employer violated federal discrimination laws. In this case, the EEOC will attempt to conciliate a settlement with the employer.
Typically, the EEOC finds “no cause” to believe discrimination occurred.
Whether the EEOC finds “cause” where conciliation fails or “no cause” that discrimination occurred, the employee then has the right to file a lawsuit in federal court within 90 days. If the employee fails to file the lawsuit within the time period, the worker is barred from receiving damages for the alleged discrimination or harassment.
Of note, while the Equal Pay Act is also enforced by the EEOC, the law does not require that employees go to the EEOC first, and such claims can go straight to federal court for adjudication.
Information on the EEOC’s process can be found at EEOC.gov.