Recently, our employee’s rights lawyers detailed to problems with filing a charge of race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, age, or disability discrimination with the Equal Employment Opportunity Commission (“EEOC”) and hoping that it prosecutes it correctly. (Best Law Read: Read This Before Filing An EEOC Charge). Today, we delve into a deeper example of this.
Will the EEOC take my case to trial?
Best Employment Discrimination Lawyer Answer: Almost definitely not. Filing with the EEOC and hoping that it takes your case to trial is like flipping a coin and hoping it lands on its side and stays up right. Is it possible? I guess. Will it happen? I wouldn’t count on it.
Previously, our employment discrimination lawyers detailed that of the 61,331 charges filed with the in 2021, the EEOC filed only 116 lawsuits during the same period – which gives you only a .189 percent chance that the EEOC will even file your claim. (See EEOC’s own Fiscal Year 2021 Agency Financial Report and Charge Statistics Report). By comparison, Spitz, The Employee’s Law Firm filed more than 1,100 complaints in the same time frame.
Now, let’s take it a further step. According to its own reports, of the 61,331 charges filed with the in 2021, do you want to guess how many the EEOC tried to a jury? THREE. That’s it. Three. That’s such a low number that when I plugged the numbers in my calculator to get a percentage, I got an error. It works out to .0049 percent.
Why does the EEOC take such few cases to trial?
Best Race Discrimination Attorney Answer: Let’s take a peek at the EEOC’s Management Directive 110, Chapter 12. It encourages cases to be settled as a priority: “presuit settlement efforts should be considered in every case as they sometimes can save the parties substantial time and expense.” To be clear about its objective, the Management Directive 110 further provides that “Title VII of the Civil Rights Act of 1964 expressly encourages the settlement of employment discrimination disputes without litigation,” and “Agencies are encouraged to seek resolution of EEO complaints through settlement.”
Now, early settlements on good terms for the employee are always a positive, but …
Who gets to decide if my lawsuit through the EEOC gets settled?
Best Gender and Age Discrimination Lawyer Answer: Not you. The EEOC’s Management Directive 110, Chapter 12 provides that the once the EEOC takes over the prosecution of the claim, it is the unquestioned “authority of agencies to enter into settlements of EEO claims and considered ancillary questions about settlements” and that “Title VII provides authority to enter into settlements of EEO complaints, and, likewise, Title VII provides authority for agencies to effectuate the terms of those settlements.” Likewise, the EEOC’s Settlement Standards and Procedures provides: “General Counsel controls the agency’s litigation, and therefore has the authority to decide whether to settle Commission lawsuits and on what terms.” In other words, the employee does not. Thus, where an employment attorney has to get informed consent, preferably in writing, from the client, the EEOC expressly provides that the requests for settlement got to high-ranking officials in the EEOC: “Requests for settlement approval should be sent to the Associate General Counsel for Litigation Management Services. The request should be in the form of a memorandum containing a discussion of the case prosecution, the legal unit’s opinion of the merits of the case, the settlement terms, and the reasons for settlement on those terms. All relevant resolution documents, including claimant releases, should be included with the memorandum.”
Even more problematic, to accomplish this early resolution goal, the EEOC can accept non-monetary terms over monetary compensation to the employee: “For example, an agency may settle a complaint involving the termination of an employee by agreeing to pay for or provide outplacement services to help the former employee find a new job, provided that the cost of the outplacement services does not exceed the total monetary relief a court could order if the complainant were to prevail in the case. In another example, an agency could agree to reassign a complainant to a different supervisor or office in a settlement of a complaint, alleging discriminatory failure to promote, where the complainant and the supervisor who made the promotion decision do not get along.” Remember, this is the choice of the EEOC’s Associate General Counsel for Litigation Management Services, not the employee.
Can the EEOC decide to settle without a recovery for the employee?
Best Sexual Harassment Law Firm Answer: Yep. If giving the employee an unwanted remedy was not bad enough, the EEOC has the authority to completely waive all remedies directly for the employee. Of course, the EEOC’s Settlement Standards and Procedures provides that the EEOC would have to say it thought really hard before doing so: “Individual affirmative relief should not be waived without strong reasons, as it is important to effective enforcement of discrimination laws that victims attain their rightful place in the workforce.” Of course, the EEOC gets to decide what a strong reason is too. Oh, and by the way, the recovery of monetary relief is way down as forth on the list of the things that EEOC Regional should consider.
Will the EEOC respect an employee’s right to keep the settlement private or negotiate added value from the employer for confidentiality?
Best Employment Law Attorney Answer: The EEOC does not care about confidentiality requests at all. One critical term for employers is typically confidentiality of the settlement terms and negotiating this term usually will net additional consideration for employees in private actions. That option is not available when the EEOC takes charge of your claim as the EEOC’s Settlement Standards and Procedures expressly provides that “the agency will not enter into settlements that are subject to confidentiality provisions, it will require public disclosure of all settlement terms, and it will oppose the sealing of resolution documents.” Indeed, the EEOC will fight confidentiality even if it is ordered by the court: “if, over the Commission’s objections, a court issues an order preventing such access, the Regional Attorney should notify the Associate General Counsel for Litigation Management Services immediately and submit a written recommendation regarding appeal of the order.” So, given the choice between getting a good settlement for the employee with a confidentiality agreement in place or no settlement at all, the EEOC chooses no settlement every time.
In fact, even if the employee does not want to bring attention to the issue, the EEOC does not care. EEOC’s Settlement Standards and Procedures further makes clear: “The Commission’s practice is to issue a press release upon settlement of a Commission suit. Neither the issuance nor the content of the press release should be the subject of negotiation.”
So, in summary, the EEOC has its own agenda, which is definitely not your agenda. In fact, the EEOC does not even care or want to know what your agenda is.
Does the EEOC owe a fiduciary duty to employees?
Best Employees’ Rights Discrimination Lawyer Answer: Not at all. It is important to recognize the biggest inherent difference between a personal attorney and letting the EEOC take the claim. If you engage your own counsel, that attorney owes you a fiduciary duty to you as the client, which means that the lawyer must at all times act in the best interest of the client to an end decided by the client while keeping the client informed every step of the way. The EEOC owes no fiduciary duty to the employees. Indeed, the only mention of a fiduciary duty in any EEOC directives or guidelines is in the EEOC’s Settlement Standards and Procedures, which states: “the agency head has a fiduciary obligation to defend the agency.” So, the EEOC’s only fiduciary duty is to the EEOC – not the employee. Moreover, in the same section the EEOC makes clear that it requires “a fair and impartial investigative process,” which means that the EEOC is equally on the employer’s side as the employees.
If the EEOC finds a violation, and unlike in private litigation, the EEOC’s objective is not to maximize the total recovery for the employee. Again, according to Management Directive 110, Chapter 12, the EEOC promotes settling cases as early as possible to limit government resources.
Should I file a charge of discrimination with the EEOC on my own?
Best Employment Lawyer Answer: No. Unless you are up against the statute of limitations to bring your discrimination claims, the best course of action is to consult an attorney to guide and protect you through the EEOC process. So, if you have been wrongfully fired, harassed, demoted or passed over for a promotion based on your race, national origin, gender, age, religion or disability, call the right attorney at Spitz, The Employee’s Law Firm to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?) Call our lawyers in Cleveland, Columbus, Toledo, Cincinnati, Detroit, and Raleigh to get legal help that will put you first. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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