Mapping the Maze
The Equal Employment Opportunity Commission was established to help you fight discrimination on the job.
If you discovered that your boss was secretly withholding a hefty portion of the workers’ paychecks, you’d probably head down to the local district attorney’s office to file embezzlement charges.
But what if the boss isn’t actually taking money out of your paychecks, but simply confines women workers to lower-paying jobs? Legally, that’s not embezzlement. But the effect is the same — someone pockets part of the money that women workers should have earned.
Despite the enactment of scores of antidiscrimination laws, women still earn an average of 59 cents for every dollar earned by men. The problem with equal employment law is that enforcement is up to the victims of job discrimination. The vast majority of employers in this country don’t give a hoot about federal equal employment or affirmative action guidelines as long as they can get away with violating them.
What can women do to prevent or stop job discrimination? First and foremost, you must know how to spot discrimination. There aren’t many employers who’ll tell you flat-out that they won’t hire women, nor are there many who pay women less for doing the same work as male employees. Job discrimination in the 1980s can be very subtle, and as women enter previously male-dominated occupations, new forms of discrimination emerge. (See page 113 for descriptions of various forms of job discrimination and the laws under which charges may be filed.)
If you feel that you are being or have been discriminated against in hiring, job classification, promotions, benefits or firing, there is a federal agency — the Equal Employment Opportunity Commission (EEOC) — which was established to help you file a discrimination complaint against your employer. In fact, you must go through EEOC if you intend to sue your boss under federal anti-discrimination laws; the federal courts will not accept such lawsuits unless EEOC has first screened the case.
EEOC has field offices in every state, although in most states they are located only in large cities. To find the nearest EEOC office, check your phone book under “U.S. Government;” if it is not listed there, call the information operator.
EEOC enforces Title VII of the 1964 Civil Rights Act (which prohibits discrimination based on race, sex, national origin or creed), the Age Discrimination Act and the Equal Pay Act. Procedures for age discrimination and equal pay complaints vary slightly from those under Title VII described here, but your area EEOC office should have pamphlets available which describe the various discrimination laws and the time limits and other restrictions which apply to each of them.
There are two important factors you must consider before filing an EEOC complaint: discrimination laws do not apply to employers with fewer than 15 workers, nor can discrimination laws be enforced if the act of discrimination took place more than 180 days before you filed the complaint. In the first situation, this means that if you work for a “mom and pop” type of business which employs only 10 people, you have no legal recourse if they refuse to hire women, pay women less than men or discriminate against women in any other way. It does not mean that you can be discriminated against if you work for a small, locally owned franchise of a larger corporation — in that case, EEOC would view the corporation as the employer, not the local franchise.
The 180-day restriction on filing EEOC complaints also has different applications. For instance, if you are working in a situation in which the discrimination is ongoing — women are not hired for certain types of work, are paid less or are continually subject to sexual harassment — you may file a complaint at any time, as long as you are working there. If you are forced to resign, denied a promotion, fired or not hired due to sex discrimination, then you must file with EEOC within 180 days of that action.
The helpfulness of local EEOC offices varies. In most areas you can phone or write for the necessary forms, and the preliminary work can be conducted through the mail if it is difficult for you to get to the office. It is, of course, always better if you can meet personally with an EEOC officer to make sure your complaint forms are filled out correctly and with all the necessary information. If that is not possible, you may get help in filling out the forms through your local human relations commission, women’s commission or organizations such as the National Organization for Women, the American Civil Liberties Union or the National Association for the Advancement of Colored People.
A few EEOC offices, however, have told people that they must personally come to the office to file a complaint. If this is a hardship for you, if it would mean taking a day off from work without pay or traveling long distances, write a letter of complaint to the field office and send copies to EEOC [2401 E St. NW, Washington, DC 20036, (202) 634-7040], your local or state human relations commission and the state ACLU. Follow up these letters with phone calls and insist that your right to file a complaint cannot be taken away solely because you cannot file in person.
The more information and documentation you can include with your EEOC complaint, the better. If you have written letters to your company’s personnel office or to your union, keep copies and attach them to your complaint. Likewise, if you have witnesses who will verify your complaint, or if you know of others who have experienced similar discrimination at your workplace, you should include statements from them with your complaint. Some EEOC officers may try to tell you that this kind of documentation is “unnecessary” or that it is not their policy to include such information with complaints. Insist, in writing if necessary, that it be included in your file.
Once your complaint has been filed with EEOC, things should move quickly. Under a recently adopted policy called “Rapid Charge Processing,” an EEOC officer will be assigned to write the specific charge against your employer. As the complainant, you should be aware that EEOC’s intent in establishing “Rapid Charge” was to eliminate a three- to five-year backlog in complaints. The backlog was due primarily to the fact that EEOC had been thorough in its investigations and often expanded individual complaints to class actions on behalf of all workers affected by a particular employer’s discrimination.
Under the old practices, discrimination victims were understandably frustrated by the length of time it took to get through the EEOC procedures. But what the new policy makes up in time, it takes away in thoroughness. Your interviewer may try to narrow your charge as much as possible, so that your complaint will either stand or fall on its own. This is especially destructive in situations where your complaint may appear insignificant on its own, but when taken in context with other similar complaints, could make an airtight case of discrimination. For example, if you applied for a supervisory position in your company and were passed over in favor of a less-qualified man, it would be relatively easy for your employer to argue that you were not promoted because you have a “bad attitude.” But if it could be shown that qualified women were never promoted to supervisory positions, the employer would have a very difficult time disproving the discrimination charges.
Job discrimination rarely occurs in a vacuum, and by discouraging victims from filing group charges or refusing to look at company-wide discrimination patterns, EEOC is, in effect, making it much easier for employers to discriminate on a wholesale basis. You can, however, demand that your EEOC officer broaden your complaint to a class action, or group charge if you have evidence to back up your claim. But be prepared for a fight.
Once the charge is written, your EEOC officer will investigate your complaint and attempt to negotiate a settlement with your employer. The investigation will probably consist of no more than a phone call or two to your company’s personnel office to get their side of the story. Your EEOC officer will request the company to negotiate —to rehire you, to put a stop to discriminatory practices, or whatever settlement the EEOC feels is appropriate. Few companies agree to settle at this stage, so your complaint will probably move to the next stage: the “fact-finding” conference.
The fact-finding conference is supposed to be held within 120 days after your complaint is filed. Many EEOC offices go beyond the 120-day goal, so it is especially important for you to keep in close contact with your EEOC officer in order to prod him or her to schedule your hearing within a reasonable time limit.
The fact-finding conference is like a court hearing, except that no one is under oath and you cannot present witnesses or evidence in your behalf. If you can afford to do so, hire an attorney — one who is experienced in employment discrimination law — to represent you in the EEOC hearing. If you cannot find an experienced attorney or cannot afford one, contact one of the resource groups on page 109. They probably can’t provide you with a lawyer, but they can offer knowledgeable guidance and support. If you do not have an attorney at the fact-finding conference, you will probably face your employer and perhaps the company personnel officer and attorney on your own.
The EEOC officer will act as judge as well as negotiator, and again the emphasis will be on reaching a settlement. If you settle, you waive your right to take your case to court, so it is important that you make several decisions before going to the hearing: 1) Do you want back pay; do you want reinstatement in your job; do you want the promotion you were denied? 2) What action on the part of your employer do you think would be most fair? 3) If you cannot negotiate your most fair settlement, would you accept a compromise? 4) How far are you willing to compromise?
If you do not reach a settlement at the factfinding conference, EEOC will forward your case to an investigative unit for further study to determine if discrimination occurred. The EEOC-established goal for this stage of the procedure is 120 days, but as with the earlier time line, this is just a goal and the process may take longer. If EEOC takes more than 120 days, you may request a “right to sue” letter, after which you have 90 days to file suit against the employer in federal court.
If the investigative unit determines that discrimination has occurred, they may try to negotiate a settlement with your employer again, or send you their determination along with a “right to sue” letter. If EEOC decides against you, it does not necessarily mean that you do not have a legitimate complaint. You will have to request your “right to sue” letter and proceed on your own to find an attorney who will prepare and file your case in federal court. Once you do get into federal court, it can still be years before your case is heard and decided upon.
If all this sounds extremely frustrating, disheartening and time-consuming — well, it can be and often is. And the prediction is that under the Reagan administration it will get worse. Although no one believes that Reagan will go so far as to dismantle EEOC entirely, the division responsible for investigating class-wide discrimination will probably be eliminated by the budget cuts. Since many forms of job discrimination are too subtle to identify on an individual basis, victims will have a much more difficult time of proving their claims, especially in the areas of promotions, reproductive rights and pay equity. And when we consider that the Reagan administration is also eliminating federal guidelines in affirmative action, contract compliance and sexual harassment, the employment picture for women looks grim, indeed.
But it’s not hopeless. EEOC is expected to process discrimination complaints pretty much as it has in the past, and more women’s and civil rights organizations are beginning to develop programs around employment issues. And remember, many of the organizations listed in this book will help you find your way through the EEOC maze.
Even if the worst comes to pass and EEOC and equal employment laws are gutted, all is not lost. We asked Izabelle Pinzler, director of the ACLU Women’s Rights Project, what recourse people have if and when equal employment services and regulations are gone. She reiterated the time-tested philosophy: “People are going to have to enforce their equal employment rights by collective action.