Administrative and Litigation Procedures & Remedies

Administrative Procedures

  • EEOC's Role:
    • Investigative responsibility.
    • Must exhaust administrative remedies by filing a charge with EEOC for most claims.
    • Unlike OSHA or NLRB, EEOC does not have adjudicative authority.
    • The purpose of an EEOC charge is to investigate and facilitate resolution.
  • EEOC Litigation:
    • EEOC can file suit on behalf of plaintiffs or groups if the case merits it.
    • Not statutorily required to file suit in every case.
    • Typically involved in big picture cases or egregious discrimination cases.
  • Filing a Charge:
    • Must be filed within 180 days of the alleged unlawful employment practice.
    • Extended to 300 days if proceedings are initiated with a state or local agency.
    • Mississippi is one of the few states without a state human rights organization or non-discrimination law.
  • Definition of a Charge (Hollowecti Case):
    • EEOC regulations require:
      • Names, addresses, and phone numbers of the charging party.
      • Statement of facts describing the alleged discriminatory acts.
      • Number of employer's employees.
      • Statement regarding whether the charging party has initiated state proceedings.
    • Need to be able to identify the people that are involved.
    • Answering the threshold question of whether the employee employer has enough employees to meet the statutory threshold.
    • Must be reasonably construed as a request for EEOC to take remedial action (the request for the agency to act standard).
    • Often arises when employees are not represented by attorneys and file charges themselves.
  • EEOC Form 5:
    • Contains spots for all requisite information.
    • Includes a statement asking EEOC to take action.
    • EEOC has intake documents and staff to assist potential charging parties.
    • Completed Form 5 almost always meets the definition of a charge.
  • Representing Employees:
    • Attorneys should use Form 5, discuss it with clients, and review it.
    • No excuse for sending in homemade letters when an attorney is involved.
  • Content of EEOC Charge:
    • Must put EEOC and the employer on notice of the charges.
    • Identify the type of discrimination alleged and provide sufficient facts.
  • Scope of Lawsuit:
    • Limited to the scope of the EEOC charge.
    • EEOC is charged with investigating the allegations.
    • Must state what happened and what types of discrimination or retaliation occurred.
    • Lawsuit is limited to claims stated in the charge or those that could reasonably be expected to grow from the claims in the EEOC charge.
  • Checking the Right Boxes:
    • Important to check the right boxes on Form 5.
    • Courts may not be overly formulaic if sufficient information is given to EEOC to open an investigation.
    • Charge can be construed to cover discrimination or retaliation not explicitly referred to if EEOC's investigation could reasonably have led to those other charges.
    • Better to check all necessary boxes and provide all necessary facts upfront.
  • Timeliness:
    • 180-day timeline (or 300 days in a deferral state) starts when the unlawful employment practice occurs.
    • Usually straightforward but can be complex.
  • Ricks Case:
    • Academic tenure case where the adverse employment action was determined to occur when the faculty member was notified of the denial of tenure, not when employment ended.
  • Notice of Intent:
    • The 180 days starts when the decision is communicated to the employee.
    • If the employee does not have actual notice of the permanent employment action, the 180 days has not started yet.
  • Continuing Violations (Morgan Case):
    • In the context of harassment, all acts of harassment can be considered if one act or more is within the 180-day period.
    • As long as one of the harassing acts occurs within the 180 day look back period, all of them can be considered.
  • Discrimination in Compensation (Ledbetter Case):
    • Charging period begins when the last discriminatory pay decision occurs.
    • Congress passed the Lilly Ledbetter Fair Pay Act, stating that each new paycheck reflecting unlawful discrimination is a discrete unlawful employment practice.
    • Damages limited to a two-year look-back period.
  • Failure to File Timely Charge:
    • EEOC will not investigate.
    • Administrative remedies not exhausted.
    • Strict adherence is required but is not jurisdictional.
    • Equitable tolling may be appropriate in certain circumstances.
  • Equitable Tolling:
    • Similar to tolling in statute of limitations cases (latent injury).
    • The presumption is that at the time of the adverse employment action, the individual has the information needed to file a charge of discrimination.
    • As a lawyer, you need to make sure that the charge gets filed within 180 days.
  • Statutes of Limitations:
    • Must get everything straight as a lawyer before definitely accepting representation.
    • Need to know the dates that things happened in order to determine if the claim still exists.
  • EEOC Investigation:
    • EEOC assigns an investigator.
    • The respondent receives notice, often through the EEOC portal.
    • The notice of charge may be accompanied by a request for additional information.
    • Request for information differs depending on the type of claim.
    • They will usually ask you to submit a position statement as well.
  • Position Statements:
    • Employers often submit a position statement to explain what happened.
    • Be careful in how you put together a position statement.
    • The plaintiff is going to try to beat your summary judgement motion with the contradicting facts that you put in your position statement.
  • Resolution Efforts:
    • EEOC will almost always ask the employer to engage in some type of resolution efforts, a mediation session.
    • Often involves shuttle diplomacy, especially if the charging party is unrepresented.
    • Settling cheap claims is beneficial.
    • It is a learned skill to be able to manage your client's expectations and explain that to them.
  • Right to Sue Letter:
    • Ticket into federal court.
    • EEOC may make a determination of whether reasonable cause exists.
    • EEOC issues a right to sue letter even if they don't make the determination.
    • An Employee can asks for their right to sue letter at any time.
  • Filing Suit:
    • Suit must be filed within 90 days of receipt of the right to sue letter.
    • Date of receipt is usually known because of online portals.
    • In situations where EEOC operates by mail, receipt is presumed within 3-7 days of issuance.
    • This limitations period is not jurisdictional and can be subject to equitable tolling.
  • Bernstein v. Maximus Case:
    • The Fifth Circuit reversed dismissal of a case because EEOC affirmatively gave misleading information by sending a form letter that had contradictory information on it.
  • ADA and ADEA:
    • ADA follows the same process as Title VII.
    • ADEA has slightly different rules.
      • Do not necessarily have to have a right to sue letter to file your lawsuit for an ADEA claim.
      • If a right to sue letter does issue, you still have 90 days from the issuance of the right to sue letter.
      • An ADEA plaintiff can file their lawsuit at any time from sixty days after the charge is filed until ninety days after the right to sue letter issues if one issues.
  • Section 1981 Claims:
    • No exhaustion required.
    • Different limitations period, typically three years.
  • Deferral States:
    • Accept charges in lieu of EEOC.
    • Check rules of local state agency for how they handle it.
    • State laws can have lower employee thresholds and different protected classifications.
  • Pleading the Lawsuit:
    • McDonnell Douglas standard is not a pleading standard (Svykerbage case).
    • Rule 8 governs pleading, requires only a short and plain statement of the claim.
    • Under Twombly and Iqbal, a claim must be facially plausible.
    • You don't have to go down the list of prima facie case, burn shift, legitimate nondiscriminatory reason in order to state the claim.
    • Usually you don't file 12(b)(6) motions in discrimination cases.
  • Arbitration Agreements:
    • Pre-dispute arbitration agreements under the Federal Arbitration Act are typically enforced.
    • The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act amended the FAA three years ago that typically allows people bringing those types of claims to avoid to file a lawsuit without having to go through an arbitration process.
    • Post-dispute arbitration clauses are very rarely enforced.
  • Settlements and Releases:
    • You can't agree to waive claims before they arise.
    • Settlement agreements are just contracts.
  • Older Workers Benefit Protection Act (OWBPA):
    • Requires that all settlements of ADEA claims be knowing and voluntary.
    • Must give them 21 days to consider the agreement and 7 days to revoke it.
    • This also applies to severance agreements for people 40 and older.
  • Discovery:
    • Standard rules apply.
  • Summary Judgment:
    • Going through the correct analysis and applying the facts to it.
  • Trial:
    • Motion for judgment as a matter of law may go through the McDonnell Douglas analysis.
    • You don't ask juries to shift burdens.

Remedies

  • Types of Remedies:
    • Back pay
    • Retroactive seniority
    • Reinstatement
    • Front pay
    • Declaratory relief
    • Compensatory damages
    • Potentially punitive damages
  • Legal vs. Equitable Remedies:
    • Distinction impacts who decides the remedy (judge vs. jury).
    • Title VII was originally set up so that all of the remedies were to be fashioned by the court equitably.
    • The Civil Rights Act in 1991 added jury trials and added the availability of compensatory and punitive damages.
  • ADA Failure to Accommodate:
    • Damages are not allowed if the employer made good faith efforts to identify a reasonable accommodation.
  • Punitive Damages:
    • Available only if conduct is intentional, malicious, or reckless disregard.
    • Caps on overall damages depending on the number of employees.
  • Back Pay:
    • Lost income and value of lost benefits due to discrimination.
    • An equitable remedy, but courts typically award it to successful plaintiffs.
  • Motion for Equitable Relief:
    • Typically follows a successful plaintiff verdict.
    • Requests back pay, front pay, reinstatement, and other equitable remedies such as retroactive seniority relief.
  • Reinstatement:
    • An equitable remedy and the preferred remedy for employment discrimination cases.
    • Aims to make the person whole by putting them back in the position they would have been in absent the unlawful conduct.
    • Often not appropriate due to hard feelings between parties.
  • Front Pay:
    • Alternative to reinstatement.
    • Compensates the plaintiff for the loss of future earnings.
    • Highly subjective and discretionary call on the part of the district judge.
    • Factors include work life expectancy, market conditions, and potential for advancement.
  • Declaratory or Injunctive Relief:
    • Declaratory relief addresses a current controversy.
    • Injunctive relief involves a threat of irreparable harm, inadequate remedy at law, balance of hardships, and public interest.
  • Compensatory Damages:
    • Pecuniary losses that aren't front or back pay (costs of job search, moving costs, etc.).
    • Non-pecuniary compensatory damages (emotional distress, loss of enjoyment of life, pain and suffering).
  • Emotional Distress Damages:
    • Don't have to prove a physical manifestation.
    • Must prove more than just negative feelings (sleeplessness, anxiety, stress, depression, etc.).
    • Medical records are helpful but not required.
  • Punitive Damages:
    • Meant to punish only for malicious, reckless disregard.
    • The Farrager and Eller type defense can be used.
    • Efforts to cover up potential wrongdoing will hurt the claim.
  • Mitigation:
    • A statutory obligation under Title VII.
    • The Duty to mitigate your damages is to find a new job.
    • Must seek substantially equivalent employment.
    • The Job market is a considerable variable.
  • Impact on Damages:
    • Because of the obligation to mitigate and because of the fact that most people who have previously worked would rather continue to work and be paid for that work, a lot of the times back pay and front pay are not huge issues or are not big components of damages.
    • Back pay and front pay may not be huge issues or big components of damages if the individual has found a new job.
    • Compensatory, emotional distress damages become more important.
  • ADA Damages:
    • No punitives if there were good faith efforts to accommodate.
  • ADEA Damages:
    • Similar to Title VII, but liquidated damages are available for willful violations.
    • Compensatory and punitive damages are not available due to liquidated damages.
  • FMLA Cases:
    • Similar liquidated damages that are automatic on a finding of liability.
  • Section 1981:
    • No caps on damages.
  • Attorney Fees:
    • A Plaintiff who prevails will almost always get an award of attorney fees.
    • Determined using Lodestar factors (reasonable hourly rate multiplied by a reasonable number of hours) from the Johnson case.
  • Reasonable Hourly Rate:
    • Depends on experience, specialization, reputation, and qualifications.
    • Determine by going to Westlaw and finding reported opinions of recent awards of attorney fees and comparing yourself to the guys that got the highest hourly rates.
  • Reasonable Hours:
    • Whether the amount of time spent on each particular task was reasonable.
    • Did you spend too many hours writing a summary judgment response?
    • Did you have three lawyers working on a task that could have been done with one lawyer?
    • Are your time entries such that they can't be separated out and the court can't see what was related to your successful claims and what were not?
    • You don't get attorney fees for claims that are not successful.
    • Courts can reduce or adjust fees as they see fit.
  • Economic Impact:
    • The Amount of attorney fee the potential for an award of attorney fees to be much higher than the potential for damages.
    • Potential for attorney fees is a driving factor in how these cases are valued.