On September 26,2017, a federal jury in Waco, Texas rendered a unanimous verdict for a deserving O’Brien Law Firm client, awarding her $25,000 for thousands of hours of overtime that she worked nights and weekends over almost 3 years’ time. The amount the jury awarded her was a little more than the amount of overtime […]Read More
A lot of people hear about the EEOC in Austin, Texas and the surrounding areas but they don’t know what it has to do with their discrimination case. The O’Brien Law Firm works regularly with the Equal Employment Opportunity Commission to help local Texans like you protect their rights as employees. If you have questions, need help, or believe you have a case call us at (512) 410-1960 or set up a free 15-minute phone consultation.
In the meantime, let’s get you up to speed on the EEOC.
The Equal Employment Opportunity Commission (EEOC) is a federal agency that was created in 1965 to help put into effect and enforce the anti-discrimination laws from the Civil Rights Act of 1964. For many cases of discrimination – for instance, with race, national origin, color, religion, sex (including pregnancy), age (over 40) or disability discrimination – an employee has to first file a “Charge of Discrimination” (typically, the EEOC’s Form 5) with the EEOC. (The O’Brien Law Firm does this for its clients on a regular basis.) If you are alleging job retaliation that resulted from you complaining to your employer or an anti-discrimination agency about one of these types of discrimination, you also have to file a Charge of Discrimination with the EEOC as a prerequisite to filing a lawsuit for retaliation. The law considers job retaliation to be a form of “discrimination” – the employer is treating you differently than, and worse than, other employees due to either your protected characteristic (like your race), or because you exercised your legal right to complain about job discrimination. It’s all “discrimination” in the eyes of the law.
The EEOC has the legal right to have a “first-crack” at investigating the alleged discrimination. You usually can’t file these types of cases as a court lawsuit against the employer until it has first gone through the EEOC.
You may also be able to file your Texas case with the Texas Workforce Commission Civil Rights Division, which is discussed more below. Deadlines determine whether you can file with both the TWC Civil Rights Division and the EEOC, or just the EEOC. Either way, if you can file with both, you’ll want to “dual file” – meaning, indicate on the Charge of Discrimination that you are filing with both the EEOC and the TWC Civil Rights Division even though you are presenting your Charge of Discrimination to one agency.
Which EEOC office in Texas is the right one for me?
It depends on which county you live in. Or, if you moved to another part of Texas after your termination, you may have to still file the Charge of Discrimination with the EEOC office where you previously lived.
The EEOC has two district offices in Texas – Dallas, and Houston, as well as a two smaller field offices, in San Antonio and El Paso. A district office covers larger region, and a field office is more like a satellite office within that district.
The Dallas District Office handles cases in the DFW and Waco areas, as well as cases across a wide swath of Texas, including West Texas and the Panhandle.
Within the Dallas District area, the San Antonio Field Office covers counties in the San Antonio and Austin areas. The El Paso Field Office covers the El Paso area as well as the Midland-Odessa and Lubbock areas. See the list of counties for the Dallas, San Antonio and El Paso offices here.
The Houston District Office covers the Houston area and most of East Texas, as well as the entire state of Louisiana. (The New Orleans Field Office specifically handles charges of discrimination in Louisiana.) See the list of counties for the Houston District Office here.
Why doesn’t a large city like Austin have its own EEOC field office?
It’s likely because, as the state capital of Texas, Austin already has the state agency headquarters for the Texas Workforce Commission Civil Rights Division. The TWC Civil Rights Division is the state-level agency that is in charge of enforcing Texas’ anti-discrimination laws, which in most ways mirror the federal anti-discrimination laws. The TWC Civil Rights Division has a work-sharing agreement with the EEOC, and the two agencies will sometimes pass investigations between each other to spread the workload. Our office often deals with the TWC Civil Rights Division even when we file our client’s Charge of Discrimination with the EEOC San Antonio Field Office.
One of the first things the EEOC usually does is ask the parties if they want to mediate. When the EEOC sends you an “Invitation to Mediate” – it does not mean that the EEOC has any opinion about you case at this point, or that the employer has told the EEOC it wants to settle. It’s just an invitation to both the “Charging Party” – that’s you, in EEOC lingo – and the “Respondent” – that’s the employer, to the EEOC – to use the EEOC’s mediation services before the EEOC digs in and begins an investigation. It’s a standard procedure. The EEOC’s logic is this: if the parties are inclined to come to an early settlement, the EEOC’s resources are preserved for other cases.
However, in order for a mediation to happen, both the Charging Party and the Respondent have to agree to mediate. If one side says “no” to mediation, there will be no mediation and it will go straight to the EEOC’s investigation department. And the EEOC will not disclose who said “no” to mediation. So if you say “yes” to mediation, and the employer says “no” – the EEOC will normally not disclose to the employer that you were interested in mediating.
What is a “mediation”?
Mediation is an event where the employee and the employer – and both sides’ attorneys, if the parties have attorneys – come to an office with an EEOC mediator to see if the parties can get the case resolved early in the complaint. “Resolved” normally means a money settlement, although depending on the circumstances, a mediated settlement can also get the employee non-monetary results, like certain disability accommodations, a letter of reference or, in rarer cases, reinstatement.
Mediation is considered to be an “informal” process. The mediator is just a settlement facilitator. He or she makes no decisions in the case. He or she is just there to try to help the parties get the case settled.
The mediation usually, but not always, starts with the parties in a “joint session” in one room, sitting across a table from one another. Both sides have the opportunity to make an “opening statement” – which is whatever that party wants to tell the other party before the mediation begins to plant the seeds for a successful mediation. Sometimes it’s describing key evidence that the other side should be concerned about. Sometimes it’s simply to thank the other party for being there and for expressing your intent to see if the case can get resolved at this stage. What should or should not be said during an opening statement just depends. With an attorney, your attorney will normally do the talking for you. The attorney can also advise the mediator to skip the joint session if the dynamics of the parties are such that it might do more harm than good. It’s another reason to have an attorney for your EEOC mediation.
After the joint session (which usually lasts on average about 10 minutes), the employee and the employer (along with each sides attorneys) are sent to separate rooms, where they spend the rest of the mediation. So, you don’t have to worry about being in a room with a difficult former supervisor for a long time. Then the negotiating begins, as the mediator takes proposals for settlement and counteroffers back and forth between the rooms, and discusses the pros and cons of each side’s positions to get the parties thinking beyond their own perspective of “I’m right and they’re wrong.” If, as the mediation goes on, the parties are able to come to a settlement that both sides may not like – but that both sides can live with – we have a settlement. The terms of the settlement will then be put into writing and signed by both parties. However, know that you have no obligation to settle at mediation. If, by the end of the mediation, the employer has not offered you a settlement amount that you are willing to agree to, you can say “no” to settlement at the mediation. If the mediation fails to settle the case, your Charge of Discrimination then moves to the EEOC investigation phase.
Having an attorney at the EEOC mediation
Having an attorney can be critical at this stage to help you get the best result. Why? Employers usually do not fear an employee who doesn’t have an attorney – because without an attorney, the chance of that employee ultimately suing the employer after the investigation is relatively low. And that’s really what the employer fears – a lawsuit. An attorney provides leverage (teeth) and can help you evaluate the value of your case to figure out what’s going to get you the best result in the circumstances of your particular case. At a mediation, you are essentially selling the employer peace from the potential of a subsequent EEOC investigation and lawsuit. The job of your attorney is to convince the employer that they need to pay more than they want to pay in order to buy that peace and avoid a good faith discrimination lawsuit down the road. Similarly, the employer’s attorney will be trying to convince you to take whatever the employer is offering now, because – as they will argue – your case is terrible and you’re not going to do better than this settlement offer if you file a lawsuit in court. If you don’t have an attorney advising you, the statements from the employer’s attorney either during the joint session or as messages passed through the mediator can be unnecessarily intimidating. And that kind of intimidation can cause you to buckle and accept a settlement that is far below the true value of your claim. Another reason why having an experienced, confident, board-certified employee rights attorney can be key.
Since Austin doesn’t have its own EEOC Field Office, EEOC mediations for Charges of Discrimination out of Austin will typically take place at a Texas Workforce Commission state building.
Q: “I’m handling the EEOC mediation on my own. How much do I ask for at the mediation? How much should I accept to settle that case? I have no idea!”
And neither do we – not without being able to know as much as we can about your case and the employer. Determining the settlement value of a case is an art that an experienced, board-certified employee rights attorney develops over the course of years. Although it’s not identical to it, it’s similar to something like selling an antique. There may be similar antiques out there – but not identical. So a lot of factors go into determining the value of your antique. Ever seen Antiques Roadshow on PBS? Just because the appraiser appraises the value of your 1920s ballerina music box at $2,000 doesn’t mean that a buyer at the next auction will agree that it’s worth that much. And perhaps with the right buyer, it’s worth more. So again – it’s an art that requires experience. And just like an auction house can prepare your antique for auction and make it look it’s very best, a good, experience board-certified employee rights attorney can make your case look its best as well – as the employer is trying to figure out how much it will cost to buy peace from your valid claim.
It’s not like selling used cars, however. When you sell a used car, everyone can go to the Kelly Blue Book to see what the market value of your used car is, based on the model, year, mileage and condition. And so the seller and potential buyers are almost always negotiating within a narrow range, near the published Blue Book value. But there isn’t a “blue book” for employment lawsuit settlements. As it is, there are so many factors that an attorney has to take into consideration when determining the value of your case, including:
- the strength of the evidence
- how the evidence fits with (or doesn’t fit with) the specific words of the anti-discrimination or anti-retaliation law
- how key evidence will be presented (is it an email? or will it be a he-said-she-said situation?)
- how credible certain witnesses will be – including you as your own witness
- how the average person (read: juror) from the area will react to the facts of your case
- your compensation level (which affects the amount of money you can claim to have lost)
- what specific effect, if any, the termination has had on your physical health
- how diligent your work search has been following the job loss
- if you’ve gotten another job, and how much you’re being paid at the new job
- whether we will have the option of filing a lawsuit in both state or federal court – or only federal court
- the financial health and solvency of the employer
- what your personal goals are with the lawsuit and how long you are willing to be involved in a lawsuit
- what court (geographically) we will be in after we file a lawsuit
(For instance, filing a lawsuit in Travis County district court can lead to a very different result than filing the same lawsuit in a Williamson County district court. Even though Williamson County is just north of Travis County, you can easily get a different case result due to the dynamics of those courts and judges as well as the respective community values and perspectives.)
As you can see, there are a ton of factors that an experienced, board-certified employee rights attorney takes into consideration to figure out your “case value.” And without a doubt – the employer’s attorney is doing the same thing. And, unsurprisingly, the employer’s attorney will normally look at the same case and estimate a lower case value than your attorney thinks it should settle for.
However, regardless of the art and complexity of valuing and negotiating a settlement, the goal is always to help you get a result that gets you the most compensation for a violation of law, holds the employer accountable and improves your life. And if the employer is unwilling to offer an acceptable settlement, and the facts and evidence of the case warrant it, the O’Brien Law Firm gladly and confidently moves forward to a lawsuit after the EEOC process completes to force accountability on the employer.
If the parties don’t settle in mediation – or don’t agree to it in the first place – it goes to an EEOC investigator for an investigation. The vast majority of the time, the EEOC investigator eventually releases a Right-to-Sue Notice that states that the EEOC didn’t find a violation of law but that the non-finding doesn’t mean there isn’t a violation. Many times this letter follows no real investigation at all because of the busy workload of the EEOC investigators. Occasionally, the EEOC will issue a “probable cause” finding, stating that they believe that a violation of the anti-discrimination or anti-retaliation laws occurred in this situation. Regardless, unless (in the rare case) the EEOC decides to file a lawsuit for the employee on its own (with your attorney acting as co-counsel on the case to protect your personal interests), the Right-to-Sue Notice is the employee’s permission to now sue the employer in court for a violation of the anti-discrimination and anti-retaliation laws.
Deadlines are important in law. Sometimes a deadline can make or break a case if you miss it.
With these anti-discrimination laws, an employee who believes they were subjected to discrimination or retaliation and who must file a complaint through the EEOC must do so within 300 days of the discrimination or retaliation event. This is called a “statute of limitation,” which you may have heard of in the context of other laws or on court shows you’ve watched. A statute of limitation defines the latest date on which you can file a lawsuit (or here, a Charge of Discrimination) after the event triggering your right to file a lawsuit occurred. Once the statute of limitations has passed, your claim can no longer be pursued (in most circumstances). We strongly advise that you do not wait until close to the deadline to filed a Charge of Discrimination filed. Attorneys will often be much more hesitant to take on a case that is getting close to the EEOC filing deadline.
The EEOC is a federal agency. However, you can file your Texas discrimination complaint with the TWC Civil Rights Division as well (and you should indicate you are requesting “dual-filing with the EEOC” of the Charge of Discrimination when you file it with the TWC). But there is a shorter deadline – 180 days – to file your charge of discrimination with the TWC. Again – deadlines!
What’s the difference between filing with the EEOC and filing with the TWC Civil Rights Division?
Well, the main difference is that if you file with the TWC Civil Rights Division on time, you may have the ability later to file your lawsuit in either a Texas state court or a federal court after you get your Right-to-Sue notice. The difference between having a case filed in a Texas state court vs. a United States federal court can mean a lot to an experienced, board-certified employment attorney who knows how the differences in the courts and the subtle differences in the federal and Texas state anti-discrimination laws can affect your result – and which court will likely get you the best result. So if you can get your Charge of Discrimination filed within 180 days of the discriminatory event – either directly to the EEOC or to the TWC Civil Rights Division – you will likely keep both court options open. Your attorney will be happy about that.
Q: “I’m a federal employee. Do I use this same process to complain of discrimination?”
No, you use a different process. The EEOC provides a great explanation here.
Don’t hesitate to call us at (512) 410-1960 for help or to see if you have a case. You can also set up a free 15-minute phone consultation with Kerry O’Brien so that we can meet by phone and get some initial information to see what we can do for you. Let’s talk about your situation – with no pressure.
On April 6, 2017, a Dallas County district court jury awarded an O’Brien Law Firm client $176,000 due to the wrongful disposal of the client’s belongings in her apartment. The client testified that in August 2012, she went on a trip to visit family in Florida. Although she was late on rent, the apartment manager told […]Read More