Intro: 00:01 Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you’ve become an expendable number at work. There are robust laws that may protect you, but unlike the company, you’ve not been drilled on how to wield them, you’re playing catch-up. There are pitfalls to avoid and countermeasures to deploy that may save your job or put you in the best position to negotiate a favorable settlement. Minutes matter, your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you’ve been targeted at work. Knowledge is power. Let’s get started.
Steve Carell: 00:50 Hi, how are you?
New Speaker: 00:50 So this is your first time getting body waxed?
Steve Carell: 00:53 Yes. Yes, it is.
New Speaker: 00:54 Take off your shirt.
Spa Technician: 00:55 Oh, we’re going to need more wax. Clear all my appointments in the afternoon.
Steve Carell: 01:07 Oh, Como se llama?! Oh! … Kelly Clarkson!
Steve Carell: 01:09 *screams*.
Robert Ingalls: 01:11 Welcome to The Walking Papers podcast. I’m your host Robert Ingalls, and I’m here with attorney Josh Van Kampen of the Van Kampen Law firm. Today’s episode is titled the EEOC, would you like a pedicure to go along with that facial? Why employers get the spa treatment and you are Steve Carell in 40‑Year‑Old Virgin. Hello Josh.
Josh Van Kampen: 01:34 Hey Rob.
Robert Ingalls: 01:35 All right. So take us through that title. You always title them very well. Tell us about that.
Josh Van Kampen: 01:40 I remember one time being at the EEOC during a mediation and looking at the nice light blue paint on the walls and thinking how relaxing this is. And then my experience in practicing before the EEOC in Charlotte here since 2004, is that it’s like a spa treatment. I do not think that employers walk through the door at the EEOC with even an ounce of trepidation about what might happen to them. And that’s a shame because this is an agency whose job it is, is to enforce the civil rights laws in our nation. But at least my experience in North Carolina is quite the opposite. And I have literally had clients of mine who have described their interactions with the EEOC as being excruciating sometimes.
Josh Van Kampen: 02:28 And Steve Carell, maybe that’s a little over the top, he was in a lot of pain, but all the same, it’s not been pleasant for a lot of my clients. And there are some exceptions. In fact, there are some excellent investigators that I have dealt with at the EEOC in North Carolina, but there are a minority. And so, I’m going to describe what to expect from the EEOC in reality, and in North Carolina. And then some of this will translate obviously nationwide, but I’m going to be focusing in particular what to expect it in the North Carolina EEOC.
Robert Ingalls: 03:02 Sure. So if it’s as terrible as you say, why should I be filing with them to start with?
Josh Van Kampen: 03:07 Because you have to.
Robert Ingalls: 03:09 That’s a good answer.
Josh Van Kampen: 03:09 That would be the only reason you would ever go through this process. So there’s something, a legal term for it is exhaustion. There’s an exhaustion requirement that in order to pursue claims in court under Title Seven of the Civil Rights Act or the Americans With Disabilities Act or Age Discrimination Act, you have to go through this government agency process first at the conclusion of which you get something called a right to sue letter, which is your ticket into the courthouse. Well, I have a totally different podcast about what happens in the courthouse, but we’ll describe what happens in the EEOC process today.
Robert Ingalls: 03:44 Got you. So is there a perfect time to file? When should I be thinking about this?
Josh Van Kampen: 03:49 So think about all those commercials where they say, act now, 19.99, then you get a free widget.
Robert Ingalls: 03:57 Right, as long as you do it in the next 12 minutes.
Josh Van Kampen: 03:59 Yeah, exactly. So folks should act now, as far as I’m concerned. If something has happened that you think is discriminatory, file right away.
Robert Ingalls: 04:09 Now, is there a timeframe? Can I wait too long?
Josh Van Kampen: 04:13 You can definitely wait too long. In fact, the statute of limitations is very short under Title Seven, the Americans With Disabilities Act and Age Discrimination Act. You only have 180 days from the Discriminatory Act to file with that agency, 180 days. Be careful folks that you don’t get tripped up on when to start counting that 180 days. So let’s say in a scenario where you are informed of your termination on a Monday, but you’re not fired until Friday. When you’re counting your 180 days, you count it from the day that you learned of the Discriminatory Act, not when they stopped paying you. So in that instance, we’re counting 180 days from that Monday.
Josh Van Kampen: 05:01 And then it gets a little bit more complicated, but I have some good news for folks that live in States where there is a human affairs commission. In that instance, there’s a 300 day limitation period. Be very careful, you’re going to want to research your state law to see if there’s a state agency in which case there’s 300 days to do that. But there’s going to be folks that are also confused and saying, well, what about sexual harassment cases? So there’s lots of incidents over a period of time, when do my 180 days start counting? And I would say, conservatively, you want to start counting from the date of the first incident.
Josh Van Kampen: 05:38 Worst case scenario, you can file within 180 days of the last incident, but then you’re in a pickle because now we’re having to argue to a court or the EEOC. Now you need to look back even further because it’s, what’s called a continuing violation to say it’s a pattern. And so, we can look back further than that 180 day cutoff, but we don’t want to be arguing that, so.
Robert Ingalls: 05:59 Right, it’s a more difficult position. Is that what you’re saying?
Josh Van Kampen: 06:01 Exactly, right.
Robert Ingalls: 06:03 Now, let’s say that I haven’t gone to the EEOC, but I filed an internal complaint with the company. I let my manager know, I let HR know. Does that change anything? Does that do anything with the federal deadline?
Josh Van Kampen: 06:13 No. And your employer will never tell you that. So you’ll read your employee handbook and it’ll say, oh yeah, you should file a complaint with us and we’ll investigate it internally. That internal investigation has nothing to do with the EEOC process. So in legal terms, that’s called tolling, does that your filing of that internal complaint toll your deadline? It doesn’t. You’re stuck with that 180 day deadline, so don’t get all caught up in an internal complaint process, because it has nothing to do with your 180 day deadline. And spoiler alert, your internal investigation is going to find that nothing wrong happened. I think maybe once in my career it was the other way and I was like, I’m buying a lottery ticket, because it never happens. Yeah, so be careful about that internal complaint process. Don’t get distracted from your federal deadline.
Robert Ingalls: 07:06 Yeah. We’ve talked about that before on the podcast, HR is generally not on your side.
Josh Van Kampen: 07:10 Yeah. We’re going to … Let’s do another one. Isn’t it fun to just beat up on HR?
Robert Ingalls: 07:16 All right. So we figured out that we have to file, really no other way to do it. How do we go about doing that?
Josh Van Kampen: 07:23 What I like my folks to do and what we do here at the law firm when we’re not in a pandemic where you’re not allowed to do it anymore, is to file in person. So you can research, the EEOC has district offices, which are regional. And then within districts, there are offices, regional offices where you can go. And so you can literally walk into these government agencies and say, hey, I’m here to file a charge. They will sit you down with an intake person and they will work with you to prepare your charge.
Josh Van Kampen: 07:55 Now, be careful because the investigator that you’re interviewing with probably doesn’t really want you to file that charge. And this is another spoiler alert that the EEOC is just pushing these things for the most part. So do not get talked out of filing your EEOC charge by somebody at the EEOC because they have their own agenda in terms of their numbers. And so, be careful, go down there and file. But remember, the EEOC only cares about discrimination. So if you’re walking in there and you’re saying, my supervisor was unfair to me ever since so-and-so, I didn’t buy them a donut and I bought donuts for everybody else, she hated me. EEOC is going to say, I don’t care.
Robert Ingalls: 08:37 You should’ve bought her a donut.
Josh Van Kampen: 08:39 That’s on you, right. Don’t be such a cheapskate.
Robert Ingalls: 08:43 Now, I imagine if you try to make the argument, if you’ve missed your deadline and you try to make the argument, well, the EEOC investigator talked me out of it that’s probably a toll hill decline.
Josh Van Kampen: 08:53 It is. And in fact, you would have a very difficult time compelling that investigator to testify. And no lawyer is going to touch that case because we don’t want to be dealing with that discrimination case that’s sure hard enough to begin with.
Robert Ingalls: 09:06 Right.
Josh Van Kampen: 09:07 So that’s one way is in person.
Robert Ingalls: 09:10 All right. So we can file in person and then it sounds like you said, but because of COVID right now, we’re not allowed to do that. So I assume there’s an online option?
Josh Van Kampen: 09:18 Yeah. There is something called the EEOC Portal, or, and if you just Google, how do I file an EEOC charge, you’re going to boop, get put right into the EEOC’s website where you can find the location that you can file in person. They also have something called the EEOC Portal where you will input information, and then that will prompt somebody from the EEOC to contact you. Now, be careful because your completion of that preliminary information in the EEOC portal is not any EEOC charge folks, that is you just providing information for an investigator to call you back. So your 180 days that didn’t move the needle, you didn’t do anything at that point.
Josh Van Kampen: 10:01 If you do the EEOC Portal route and the EEOC reaches out to you at that point to interview you, this is once again, where it’s important that you talk about discrimination, don’t make this about unfairness and be ready to explain what happened and to backup your claim. And it’s at that point that the EEOC personnel are supposed to work with you to actually facilitate the completion of the form. So that’s the EEOC Portal process. And then you can also file via email. I’m not going to give an email address right now because just in case it changes, but if you call your EEOC regional office and say, hey, I’d like to file a charge, they do accept charge filings by email as well. But me personally, I like the idea of going down there, completing it, getting it file stamped, got it in your hands, take it home. That’s the safest way to do it.
Robert Ingalls: 10:56 While we’re still on this, you did say you want to talk about discrimination. Is there anything else you need to be thinking about saying, or perhaps not saying?
Josh Van Kampen: 11:06 Well in the EEOC charge form, so remember the EEOC is looking to determine whether or not they have jurisdiction. So the EEOC form that you’re ultimately going to sign, it’s going to have boxes. There’s going to be a box for sex discrimination, race discrimination, religious, national origin, disability, age. So you got to check the boxes so that the EEOC sees that it has jurisdiction. And don’t be picky on these boxes. So down the line, your lawyer may, there may be three different kinds of discrimination going on. And if you only check one, your lawyer is going to have a hard time arguing new theory in the future.
Josh Van Kampen: 11:43 So if you’re over 40, African-American and you’re female, I would recommend checking all those boxes. And then later at trial, we’ll probably whittle it down to maybe one primary theory, but at the EEOC we want to take a broad net, trust a broad net.
Robert Ingalls: 12:00 All right. So we’ve talked about how to file. Now that I’ve filed, what happens next?
Josh Van Kampen: 12:05 It’s just downhill from here. So the charge will be sent to the employer. And as I said, the employer’s heartbeat will very likely just stay nice and steady. And then they’ll be given two options at that point. One is they can participate in the EEOC’s mediation program, which is ding, ding, ding, a good thing for us. Or they can say, I don’t want to mediate, I want to defend this, and then it gets moved on over to the investigation unit. So we’re going to focus on the investigation process. But just real fast on this EEEOC mediation process, the good news is it’s free. So normally in private mediation, you have to pay the mediator here, the EEOC will provide one.
Josh Van Kampen: 12:47 And if you filed a charge and your employer agreed to mediation, that’s a good sign. They probably are interested in exploring settlement. And then you’re wondering, well, do I need a lawyer at this mediation? And I can tell you your employer’s going to have one, so you should. I mean, you can go in, but I tell you’re going to do better I think on the numbers, if you’re represented and they’ll take you more seriously, if you show up to mediation with a lawyer. Yeah, so get one.
Robert Ingalls: 13:16 Yeah. And I assume, in general, the lawyer’s probably going to have a much better idea of what your options are, what the law states and get you a better deal.
Josh Van Kampen: 13:24 And what your case is worth. I mean, you don’t know, but your lawyer will have a good sense for what it’s worth.
Robert Ingalls: 13:28 Sure.
Josh Van Kampen: 13:29 I would say about 50 to 60% of charges result in a mediation at the EEOC, but remember, you’re not obligated to take a deal. So if they’re offering you a shit deal, the EEOC mediation, don’t take it. Just let it go on down to that investigation process and play it out. But if it’s, a lot of times I tell my clients, if it’s, that you were fired three months ago and they’re already offering you pretty decent money at the EEOC mediation, a lot of times the right call is to take it, but don’t take a bad deal because then if you don’t take it, it goes down to this investigation process we’re going to talk about.
Robert Ingalls: 14:06 Now you said, so there was mediation and then from mediation they go to investigation. What does that process look like?
Josh Van Kampen: 14:12 All right. So the charge gets mailed to the employer like we talked about. At that time, they’re required to submit what’s called a position statement. So you’re opening salvo was that EEOC charge, which is going to contain your factual allegations. And now, the company is going to submit a position statement, which is its defense. You are entitled to get a copy of that position statement, at least in North Carolina. And so, wherever you are in the nation, if you’re listening to this, you want to get a copy of that EEOC charge position statement so that you can respond to it and you do have the right to respond to it.
Josh Van Kampen: 14:49 But guess what? The EEOC sometimes does. Sometimes they get a position statement, they read it and they say, no, that sounds pretty good to me. I don’t see anything there, so we’ll just let this one go. No need to investigate it. So I’ve been watching Fargo, so that’s why I go with the Minnesota accent there, but-
Robert Ingalls: 15:10 I was wondering why we made … That was a very particular style choice.
Josh Van Kampen: 15:13 I’ve been doing this the last 30 days, but yeah, so anyway, that’s usually that can happen. And it’s really frustrating because the plaintiff didn’t even get a chance to respond to it. So get your position statement, then you want to submit a rebuttal. Usually, the EEOC investigator will either want to interview you, in which case do your homework. I would prepare an outline of what you anticipate wanting to say in response to the position statement, or if the investigator prefers, they may ask you to submit a written rebuttal.
Robert Ingalls: 15:48 Now in this rebuttal process, I know every time I’m talking, I need to be thinking about what I am, what I should and shouldn’t be saying. Is there any landmines I need to be avoiding during this process?
Josh Van Kampen: 15:57 Yeah. So be careful with this interview with the EEOC investigator. So most EEOC investigators are interviewing with a goal in mind of moving that charge off their desk. So if they can get you to say some damaging things in response to their questions, then they just said, okay, this one’s off my desk. So it’s a shame. But even when I’m on the call as counsel with my client and they’re being interviewed, there have been times where it was so obvious that the EEOC investigator was trying to trip my client up, that I interjected. And then they say, “Oh, Josh, well, I’m not here to interview you. I’m here to interview your client.” And I’m saying, “No, you’re here to trip up my client.”
Josh Van Kampen: 16:45 And that’s what’s so frustrating. That’s not their job. Their job is to investigate and enforce. And I’m sad to say that that’s not what most people encounter. So that’s the position statement, rebuttal process. And then at that point, most EEOC investigators will stop investigating. And I use investigator in air quotes because some of them just read, they’ll read the position statement, they’ll read your rebuttal and will not lift a finger to do anything else to investigate. So how in the world, you just got fired, you don’t have access to personnel files to documents, to other people’s emails. You are coming to the table with a minimal amount of evidence most of the time.
Josh Van Kampen: 17:31 The EEOC has these wonderful tools. They can conduct what’s called a fact finding conference where they require the relevant decision makers to show up to be interviewed. They can go onsite to the employer and interview the alleged harasser or the manager and so forth, witnesses. They can ultimately subpoena documents and personnel files, main information. But in nine out of 10 cases, the investigator won’t use any of those tools and that’s why you might call them readers some of them instead of investigators.
Robert Ingalls: 18:06 So after this investigation has come to a conclusion, what’s the next step? What happens?
Josh Van Kampen: 18:14 Well for literally 95% of charges that are filed, the EEOC will issue what’s called a no cause finding. So a no cause finding means that they have “investigated” and determined that there is no cause to believe that your rights were violated. Don’t take it personally folks. Because-
Robert Ingalls: 18:36 95%.
Josh Van Kampen: 18:36 95% of people get that. In fact, one of my strongest cases against a local bank where a conservative federal district court judge in the Western district in Nashville called the case direct evidence, which is the strongest evidence you could possibly have, but the investigator at the EEOC wasn’t good enough for her. But it was good enough for a conservative federal district court judge? And that’s why the EEOC is so picky, and so demanding with what you’re supposed to marshal as an evidence. That’s why only 5% of these charges are ever found to have merit.
Robert Ingalls: 19:12 So it sounds like it doesn’t change your ability to pursue the case after.
Josh Van Kampen: 19:16 Right. We don’t care. As lawyers, we don’t care if the EEOC is going to issue a cause finding or not. And when we do, we literally like, let’s go get drinks every night. We literally would celebrate. I would call my other plaintiff’s lawyer friends in town and say, believe it, you know what happened? I got a cause finding.
Robert Ingalls: 19:34 Got some cause.
Josh Van Kampen: 19:35 And they will say, bullshit. And so, it’s remarkable when it happens.
Robert Ingalls: 19:41 So now with everything else in law, there’s a time limit. What’s the time limit after you get this letter?
Josh Van Kampen: 19:46 So it’s 90 days from the date that you received your right to sue letter. Once again, you got to remember when you received it. So if you got it and you didn’t write it on the envelope, received on this date, and then you wait more than 90 days, you’re in a pickle about saying, well, but I received it on such and such a date you don’t know, so write the date you received it on your envelope. The law is going to assume it took three business days to get to you. So if you don’t remember when you got it, assume three business days from the date it was mailed and you’ll be able to know when it was mailed because the EEOC envelope will have a postmark stamp. Usually, it’s on the upper right-hand part of the envelope.
Robert Ingalls: 20:28 Sure. All right. So 95% are no cause generally, tell us about that 5%. What’s the significance of a cause finding? I know it’s exciting, but past that.
Josh Van Kampen: 20:39 It’s rare, but most of the time it’s meaningless. So what happens if you get a cause finding? The employer is going to be required to participate in what’s called a conciliation. So a conciliation is like a mediation, but it’s not with a trained mediator. Your investigator is going to try to conciliate a settlement between the parties. And at that point, you do have more leverage because the employer counsel is going to be like, wow, a cause finding? So then your management lawyer is going to be like, well, this might not be good for court. And so you do see more settlements in the conciliation process, but the employer can also tell you to pound sand. They don’t have to settle if they don’t want to.
Josh Van Kampen: 21:21 So if the conciliation fails, it fails. Most of them do. And then at that point, the issue is, well the EEOC has a legal department and the EEOC has the option of actually taking the case as a plaintiff, and then you are what’s called an intervener. And so, we just had a trial here in the Western district this past year where we were representing our client, the intervener and the EEOC was a party. And we were grateful for their cause finding and for our EEOC trial attorney teammates. But the EEOC rarely, rarely, rarely, their legal department rarely takes a case.
Josh Van Kampen: 21:58 In fact, I was looking at the most recent data and out of 76,000 some charges, the EEOC legal department in the last fiscal year filed 200. So just to give you an idea, my little law firm, I have encountered it exactly, but we probably filed, let’s just say 25? 200 for the whole nation and they’ve got an army of lawyers? I mean, come on. And so this gets to the frustration that I have that my clients have with this agency, with all this money and good investigators too. And you know who you are if you’re listening to this, don’t be mad at me. And then for the other ones who have just done violence, in my opinion to the law and the standard that they applied to my clients and other workers, I sure hope it changes. It’s one of the reasons why I’m being so bold in calling this out because it has to change.
Robert Ingalls: 22:56 Yeah. All right. We’ve covered a lot of ground today. Thank you for your time, Josh. And thank you for spending a few minutes with us, listener.
Outro: 23:04 Congratulations for taking an important initial step in turning the tables at work. But this podcast is just an educational resource, it does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at ncemploymentattorneys.com or better yet, call (704) 247-3245 for a free initial intake interview, so Van Kampen Law can evaluate your case. Until next time, keep your head up and your wits about you.