Hit with a Discrimination Charge? What Every Employer Should Know

Receiving notice that a Charge of Discrimination has been filed against your business can be unsettling, particularly if you’ve never navigated the process before. For many employers, the alphabet soup of agency names, procedural steps, and legal terminology can make an already stressful situation feel overwhelming. This article breaks down what the EEOC/NERC administrative process actually looks like, why decisions made early on (long before a lawsuit is ever filed) can have a significant impact on the outcome, and the major advantages of being represented by legal counsel when your organization has been accused of discrimination.

What are the EEOC and NERC?

The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for enforcing federal employment discrimination laws, including Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and several others. The Nevada Equal Rights Commission (NERC) is Nevada’s state-level counterpart, enforcing the Nevada Fair Employment Practices Act (NRS Chapter 613), as well as fair housing and public accommodation laws.

The state laws that NERC is responsible for enforcing and the federal laws that the EEOC administers overlap to a degree that the two agencies have a work-sharing agreement where a complaint filed with one agency is usually cross-filed with the other, and the two organizations coordinate their investigative efforts. Discrimination complaints are typically assigned both an EEOC case number and a NERC case number (sometimes called the FEPA number, which stands for Fair Employment Practice Agency).

Employers shouldn’t concern themselves too much with which agency is handling their case and whether the employee’s complaint arises under state or federal law. For all intents and purposes, the process in the administrative phase (where employers are when they have received notice of an EEOC/NERC Charge of Discrimination) is the same.

What is the Difference Between an EEOC/NERC Complaint and a Lawsuit?

Before an employee is allowed to file a lawsuit, they must first file an EEOC/NERC complaint and go through what’s called the administrative process. This process was put in place to give both employers and employees a faster, cheaper, more informal way to resolve discrimination disputes than costly litigation.

Here’s how the process typically unfolds:

Step #1: Employee (or Former Employee) Files Charge of Discrimination with the EEOC or NERC

The employee or former employee submits their complaint (called the Charge of Discrimination) to the EEOC or NERC. This step must be taken within 300 days of the last instance of alleged discrimination. The charge includes preliminary information about the nature of the allegations and the protected class in question (race, sex, age, disability, religion, etc.).

Step #2: Employer is Formally Notified of the Charge of Discrimination

If the employee (called the “Charging Party” or “Complainant”) meets the deadline to file their complaint, the agency handling the complaint will notify the employer (called the “Respondent”) and send them a copy of the Charge of Discrimination. This notice is the employer’s first opportunity to begin formulating a response strategy (aka the moment legal counsel should be looped in).

Step #3: Employee and Employer are Given the Opportunity to Mediate

Once the employer has been notified, both parties are given the opportunity to decide whether they want to participate in the EEOC or NERC’s voluntary mediation program. A chance to mediate occurs before the agency has done any investigation into the employee’s complaint. Mediation is a confidential, informal process that often takes place virtually (giving the employee, employer, and their respective legal counsel the ability to participate from anywhere). Any information disclosed during mediation cannot be considered in the investigation process later if the parties do not reach a settlement.

If the parties reach a settlement at mediation, Settlement Agreement documents are exchanged through the mediator, and the case is closed shortly thereafter. If either party declines to participate in the mediation or the parties do not reach a settlement during mediation, the case proceeds to the investigation phase.

Step #4: The Position Statement & Investigation Phase

If mediation is unsuccessful or either party declines to participate altogether, the case moves to the investigation phase. During the investigation, the agency will request that the employer submit a formal Position Statement (a written response that sets forth the employer’s account of events and legal justification for its actions). The EEOC/NERC may also request supporting documentation from the employer and, in some cases, conduct on-site interviews of involved parties and witnesses.

Step #5: EEOC or NERC Determines Whether There is Reasonable Cause

Once the agency has completed its investigation, it issues a determination letter stating whether it found reasonable cause to believe discrimination occurred based on the evidence the investigator gathered.

NO, Reasonable Cause: If the agency finds that no reasonable cause existed, the agency issues a Right To Sue letter to the employee. The Right To Sue is the employee’s ticket to participate in the formal lawsuit process now that they’ve exhausted their administrative remedies. The employee has 90 days from the date of the Right To Sue letter to file a lawsuit with the courts.

YES, Reasonable Cause: If the EEOC/NERC finds reasonable cause to believe the employer violated the law, they offer the parties another chance to resolve the case through its voluntary conciliation process (quite similar to mediation, but the process is extended over weeks or months, not hours). Neither the employer nor the employee can be forced to participate in conciliation. Reasonable cause is only found in approximately 3%-5% of all cases filed, meaning most cases that make it to this phase result in a Right To Sue letter being issued.

In a few select cases (less than 1%), the EEOC/NERC will pursue formal litigation in state or federal court against the company on the employee’s behalf. The agencies select these cases based on strategic impact and specific legal issues presented (not to be confused with how bad the alleged discrimination was; sometimes there’s overlap, but not always). That litigation is normally quite public, and the EEOC/NERC issues press releases to fulfill their responsibility to inform the public about litigation action taken in the public interest.

Step #6: Employee (or Former Employee) Files an Employment Discrimination Lawsuit

As discussed above, the vast majority of EEOC/NERC cases result in a finding of no reasonable cause to believe discrimination occurred based on the available evidence. The claimant’s next step is to file a formal lawsuit in state or federal court, either through a private attorney or on their own behalf, within 90 days. After that, it’s off to the litigation races. Attorney’s fees, extensive discovery of company records, and subpoenas to testify are all possibilities.

Why Legal Representation During the Administrative Process Matters

Even though the EEOC/NERC administrative process is more informal than a lawsuit, many employers underestimate its importance. This can be a costly mistake. An experienced employment attorney brings several critical advantages to the table from the moment a business is notified that a Charge of Discrimination has been filed against it.

First, counsel can assess the strengths and weaknesses of the Charge before the company chooses to mediate and advise whether settlement is in its best interest. Because so many EEOC/NERC cases are resolved through confidential settlement agreements, and because the agencies’ public activity revolves around a small number of specific cases, it can be hard to find accurate information about what a “reasonable” settlement amount is under the given circumstances (or whether settlement is advisable at all). Businesses that rely on legal counsel’s expertise avoid having to guess how much they stand to lose and what their chances of prevailing at each stage of the process are.

Second, an employment attorney knows how to present the company’s defense in a way that is persuasive without unnecessarily volunteering too much information. Companies are asked to explain their actions in both mediation and investigation. Without counsel present, representatives may over-explain, volunteer damaging information, or fill silence nervously in a way that ends up costing the business. This is especially true if the company decides not to mediate and chooses to submit a Position Statement–which are generally admissible as evidence in subsequent lawsuits–instead.

Third, when EEOC/NERC mediation results in a settlement, legal counsel is crucial to ensure that the settlement agreement the employer signs is legally sound and does not contain ambiguous or undesirable terms. Additionally, an employment attorney can also spot whether the Charge of Discrimination hints at broader exposure thanks to problematic practices or background information that the business simply does not have the expertise to identify on its own. And, for better or worse, representation by legal counsel may also indicate to the EEOC/NERC mediators and investigators that the company is taking the complaint against it seriously, lending it added credibility.

NAE’s Experienced Legal Counsel is Ready to Help

The decisions an employer makes during the EEOC/NERC administrative process shape the trajectory of the entire dispute. Engaging an attorney early ensures that your company is not only protected at each step but also positioned to resolve the matter as efficiently and favorably as possible. If you have received a Charge of Discrimination, our experienced team of employment law attorneys at NAE is ready to help you navigate the process seamlessly so you can get back to business.

By: Shay Digenan, Esq.

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