LITIGATING DISCRIMINATION CLAIMS
Employees begin the litigation process by submitting a complaint to a government agency charged with investigating employment discrimination. In Rhode Island, the Rhode Island Commission for Human Rights investigates workplace discrimination; in Massachusetts, the Massachusetts Commission Against Discrimination. As an alternative, the Equal Employment Opportunity Commission or EEOC (a federal agency) also investigates workplace discrimination.
1. The Commission Investigation
The Charge
The employee begins the process by filing a “Charge of Discrimination” with the agency. The agencies do not require that the Charge be detailed as long as it contains the basic elements of a claim.
The Employer’s Position Statement
Next, the agency sends a copy of the Charge to the employer and requests a written response. The employer’s ‘Position Statement’ may address any of the factual assertions that make up the employee’s claim. Employers often raise additional issues at this time relating to the employee’s job performance, disciplinary problems, or character.
The Employee’s Response
The agency will then instruct the employee to respond to the employer’s Position Statement. This is the employee’s opportunity to provide evidence supporting his or her claim. If no direct evidence of discrimination exists, the employee may be able to establish a claim using circumstantial evidence – showing that the employer has lied or misrepresented the reasons for its actions.
The Probable Cause Determination
Once the agency has received the employee’s response, the investigator makes a recommendation regarding whether the evidence shows that “probable cause” of discrimination existes – i.e., that the employee’s claim is backed by significant evidence. The probable cause determination is just the first hurdle that the employee must
2. Agency Proceedings After the Probable Cause Decision
If the investigator finds probable cause, the agency continues to investigate. Eventually, the agency Commissioners hear the case in a setting similar to a trial.
3. Litigating Discrimination Claims in a Court of Law
Whether the commission finds probable cause or not, after 120 days have passed, the employee may withdraw the Charge and file a lawsuit. The employee’s attorney and the employee should consider filing suit if the facts of the case indicate that being proactive and agressive will improve the employee’s chances of success. In a lawsuit, attorneys can subpoena witnesses, subpoena documents, and demand that the case be tried before a jury. (However, less than 5% of cases make it all the way to trial.) For that reason, most attorneys prefer to transfer the case to a court of law as soon as the 120 days have passed.
If you believe you are the victim of discrimination, you should keep in mind that most employment discrimination laws have a very short statute of limitations in which to make a claim. In some cases this period can be as little as 180 days after the discrimination occurred.
DAIGLE LAW has years of experience representing employees claiming discrimination. Call today to set up an appointment!
This webpage is provided for informational purposes only and should not be considered legal advice.
