The EEOC process appears easy enough: you fill out a form called a Charge of Discrimination, maybe you meet with an EEOC representative to go over your claims, and away you go. But, in reality, the process is much more involved than what you initially expected. Pretty soon, you are told the employer has responded and has given a Position Statement written by their lawyers. The Position Statement includes all kind of legal doctrines and trying to research case law on the Internet rebut the Position Statement is overburdensome. Further, the EEOC is not your attorney so it cannot advise you on what to say in a Rebuttal Statement, and it cannot even advise you if writing a Rebuttal Statement will be worth your time, or if you should try to settle with the employer.
Here are some commons mistakes with big consequences that employees make when trying to navigate the EEOC themselves:
Making statements or taking positions that harm the employee’s case in their Charge of Discrimination or Rebuttal Statement. It probably makes an employer’s lawyer chuckle to see that the Charge of Discrimination or Rebuttal Statement is being written by the employee themselves instead of by a lawyer. The employer’s lawyer is likely an experienced litigator with an expertise in employment discrimination law and labor law. Without adequate resources, such as a Westlaw or LexisNexis account, even the savviest Internet browsing will not reveal the important case needed to establish a point. Moreover, the employee may concede crucial facts that need not actually be conceded, essentially throwing their chances of success away.
Failing to include certain parties or certain claims. Although it might not be apparent at first, this becomes a big problem later when the employee wishes to litigate their claims in court and the court determines that because they did not name the right legal entities or other individuals in their EEOC Charge of Discrimination, they cannot now sue those entities or individuals under the federal laws.
Settling the case for too low an amount because they have not consulted with an attorney to determine the appropriate amount. An experienced employment discrimination lawyer knows how to evaluate a claim of discrimination and can peg its value to other cases of a similar nature that have won at trial. You can bet that the employer’s lawyer has already researched several cased similar to the one at hand and it is their goal to settle for much less.
Dumping years’ worth of documents into the Charge of Discrimination or Rebuttal Statement that makes the EEOC’s job harder to decide in their favor. The EEOC receives tens of thousands of complaints of discrimination every year. An EEOC investigator is more likely to push to resolve or find cause to say there is discrimination when the evidence is marshaled in a way that helps reach the conclusion the employee wants.
Failing to consider that there are other claims available outside those being considered by the EEOC and waiving those claims in exchange for payment from the employer. If the employee and employer agree to settle the claims brought at the EEOC, the employer will want a General Release which acts as a waiver of liability for all kinds of claims, including those that fall outside the ambit of the EEOC. Those claims can have serious value, but because they are not a part of the EEOC Charge of Discrimination, they can be neglected when it comes to settlement. Having a good employment discrimination lawyer review any proposed settlement agreement is a good idea. The lawyer will run through the employee’s history with the employer at hand, and spot the legal issues that trigger additional violations (or may also reveal additional EEOC-related claims), making the employee’s settlement value increase.