Right to Work Law

You got fired. You believe your employer discriminated against you based on your membership in a protected class (race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age, disability, or genetic information). Let’s say, you believe the discrimination was based on your age. What do you do?

You may have heard of the U.S. Equal Opportunity Commission (“EEOC”) and you may know it enforces the federal laws that make it illegal to discriminate against a job applicant or employee based on membership in a protected class. But, do you need an attorney to file a Charge of discrimination (let’s call it a “Charge”) with the EEOC?

This question is easy. You do not need an attorney to file a Charge with the EEOC. You can contact the EEOC directly and initiate the Charge process without counsel. Is this the best thing to do? Keep reading.

Well, wait, backup, do you even need to file a Charge? What if you just want to go straight to court? This is where things get a little more complicated. To answer this, it will help to understand the EEOC process and how it fits into the spectrum of litigation.

Clients typically wonder whether the Charge is the same thing as a lawsuit. The answer is that no, it is not. The Charge is but only one step on your way to a lawsuit. You must file a Charge before you file a lawsuit under any laws enforced by the EEOC.

If you file a Charge with the EEOC, the EEOC will typically investigate the case and try to help achieve a resolution before a lawsuit is filed. Sometimes a deal gets negotiated informally and other times the EEOC will conduct a mediation. This process will generally take several months to unfold or even get started. All of this can be done without counsel.

If there is no resolution between the employee and employer, then most times the EEOC hands your case back to you. In some rare instances, the EEOC’s attorneys get involved and work on your case. But this is not the norm. The EEOC receives tens of thousands of Charges every year and only works on select cases.

If no resolution is achieved during the EEOC investigative process and the EEOC does not assign attorneys to your case, then you must file a lawsuit on your own if you wish to seek remedies for your claim(s). Many people hire lawyers when they need to file a lawsuit so you would most likely seek counsel at this point.

Now that you have a very short overview of the EEOC and Charge process – let’s get back to whether it is best to file a Charge before hiring an attorney. While there is no definitive answer, as every case is unique, here are some important things to consider before filing a Charge without counsel.

First, you may get a faster resolution without filing a Charge. The EEOC process can take months or even years. Hiring counsel to engage your employer and attempt settlement negotiations can be successful without ever going through the EEOC. You must discuss this idea with counsel as it may be a strategic advantage in some cases but not in others. Keep in mind, there are statutes of limitations involved with your Charge that you must comply with, or you will lose all of your rights to file a lawsuit and recover any remedies, damages, or the ability to settle. Attempting settlement discussions before filing a Charge can only be done if you have time to file your Charge.

Second, did I say Charges must be timely filed? I repeat, you waive all of your rights if you fail to comply with the statute of limitations. Computing the deadline can be tricky if the discrimination, retaliation, or harassment took place over time rather than just being one occurrence. If you miss this deadline, then the employer would be free to ignore you forever regardless of whether it violated your rights. An attorney will calculate and track this time period for you, so you do not miss any deadlines.

Third, the EEOC enforces federal laws, but Florida has its own civil rights act which has some variations when compared to the Federal Civil Rights Act. And, Florida has its own agency called the Florida Commission on Human Relations (“FCHR”) that enforces the Florida Civil Rights Act. Many times, a Charge is “dual-filed” with both agencies to make sure you preserve your rights under both laws. Additionally, the two agencies have different statutes of limitations which is critical to understand so you do not waive your rights. These are issues counsel would explain to you.

Fourth, even if you file the Charge on time and in the right place(s), the content of your Charge obviously matters. Rather than just spilling your side of the story onto a piece of paper, it is usually best to be concise and explain to the EEOC and/or FCHR what facts or evidence you have to support your claim(s). Like
with any legal document, what you say or do not say could impact your case. You do not want to leave out important information or reveal more than you need. Counsel would assist you in drafting the Charge strategically with these things in mind.

Fifth, navigating the investigation process itself can be daunting if you are alone. The EEOC and FCHR have wonderful investigators and mediators, but they are not your hired counsel. Having an attorney in your corner means your case will be strategically worked on from its inception. This means the Charge will be timely filed and it will establish your allegations in a customized form. Then, the attorney fields all inquiries from the agencies and is present during any questioning of you. If the agencies seek documents from you, then the attorney will help you exchange that information as well.

Maybe most importantly, the attorney will also represent you during any settlement negotiations or mediations with the employer (and most likely this means the employer’s attorneys) that the agencies facilitate. This is literally where your case’s value is going to be tested the most. Experienced counsel will
put you in a strong position to negotiate. You can probably figure out that if you try to engage the employer (the adverse party) without an attorney, you may not receive the best deal since they will likely have counsel there to argue their defense.

Finally, if no resolution is attained during the EEOC/FCHR process, which is common, then at least your attorney would be prepared for the next steps should you wish to pursue litigation. If you choose to hire counsel only after the EEOC/FCHR process, then your attorney would obviously have missed out on everything that took place during the EEOC/FCHR’s investigation, settlement discussions, and/or mediation. The attorney would also have no control over what information you already shared with the employer. This could be a strategic disadvantage going into a lawsuit and for continued settlement discussions.

This article is not by any means meant to encompass all considerations before filing a Charge. It is only meant to show that you can certainly go at it alone, but as you can see, it is a good idea to at least consider the many possible pitfalls involved with the EEOC/FCHR process if you do not hire counsel before you engage either agency. The Montone Law Firm, P.A. handles EEOC/FCHR Charges as a routine part of its practice and is happy to provide a free case evaluation if you are facing these issues and need to review your options. You can call
407-565-8228 or email info@montonelawfirm.com to get started.