The Equal Employment Opportunity Commission (EEOC) is the federal agency with responsibility for investigating and attempting to settle discrimination and retaliation claims before a lawsuit is filed. The EEOC has administrative jurisdiction over claims arising under Title VII of the Civil Rights Act of 1964, as amended (Title VII); The Americans with Disabilities Act of 1990, as amended (ADA); the Age Discrimination in Employment Act of 1967 (ADEA); and the Equal Pay Act (EPA).
Title VII and the ADA apply to employers with 15 or more employees. The ADEA applies to employers with 20 or more employees. The EPA applies to virtually all employers. Most states have a civil rights agency counterpart to the EEOC. The Colorado Civil Rights Division (CCRD) has administrative jurisdiction over state law discrimination and retaliation claims arising under the Colorado Anti-Discrimination Act (CADA). CADA generally tracks the Title VII and ADA laws, but also prohibits discrimination and retaliation on the basis of sexual orientation. CADA generally applies to smaller employers with one or more employees. It is recommend that you consult with an attorney before deciding whether to file your charge with the EEOC or CCRD.
The EEOC and CCRD have statutory duties to investigate charges that fall within their jurisdiction. A charging party must timely file a charge of discrimination with the EEOC or CCRD; otherwise, the claims likely are barred forever. EEOC and CCRD have a “work sharing” agreement. If your charge is filed with both agencies, the EEOC and CCRD will determine which agency will handle the charge.
In Colorado, a charging party typically has 300 days from the first discriminatory or retaliatory event to file a charge with the EEOC. In contrast, a charge of discrimination arising under CADA generally must be filed within 180 days of the first discriminatory or retaliatory event. As there are nuanced rules, it is critical that you promptly consult with an attorney so your charge covers all the claims and is not untimely.
Typically, the EEOC or CCRD has jurisdiction over a charge for at least 6 months after it has been filed with the agency. For EEOC charges asserting age discrimination under ADEA, the charging party may terminate the EEOC investigation and request a Notice of Right to Sue (NRTS) letter after 90 days from the filing of the charge.
When a charge is filed, the EEOC or CCRD typically asks the employer if it is willing to participate in informal Alternative Dispute Resolution (ADR) to settle the charge. If the parties are unwilling to participate in informal ADR or if they cannot settle in ADR, the charge is transferred to the agency’s investigative unit. At that point, an investigator will ask the employer to submit a position statement, to identify witnesses, and to provide information and documents requested by the agency. Sometimes the agency will contact the parties to request additional time to investigate the charge.
Upon completion of its investigation, the agency may: i) find “cause” that a violation of the discrimination or retaliation laws has occurred; ii) find “no cause” that a violation has occurred; or iii) terminate the investigation (at the request of the charging party or at the behest of the agency). If the EEOC or CCRD makes a finding of “cause” that a violation has occurred, it must attempt to conciliate (settle) the charge between the parties. If efforts to conciliate the charge fail, the agency typically then issues the NRTS letter to the charging party. The agency won’t issue a NRTS letter until termination of the investigation or conciliation efforts, or the charging party requests such. You need to receive a NRTS letter before you can bring suit on these claims.
Additionally, a charging party may have significant state law claims against the employer or its managers and employees. In those instances it is critical to have your legal matter evaluated by your attorney at the earliest possible date. An experienced employment lawyer will determine any statutes of limitations or legal deadlines that apply to any state law claims.
In relatively rare instances that involve an affected class of members or in cases of inadequate employer policies, procedures and training, the EEOC may utilize its limited resources to bring suit on behalf of a charging party or a class of affected class members. You generally have 90 days from your receipt of EEOC or CCRD’s NRTS letter to file your lawsuit in federal or state court. A lawyer should advise as to your court filing deadlines. You might have a case with additional legal claims that have different filing deadlines.
If you don’t properly frame the facts and claims in your charge (or if you don’t timely amend the charge, if necessary), your case might be compromised or subject to dismissal. It’s best to have an attorney draft and file your charge and to guide you through the EEOC or CCRD administrative proceedings before bringing your lawsuit.