EEOC AND STATE HUMAN AFFAIRS CHARGES – POSITION STATEMENTS
EEOC AND STATE HUMAN AFFAIRS COMMISSION (SHAC) CHARGES IN COLUMBIA, SC
We provide representation to both employers and employees in any kind of employment case and believe that our representation of both sides give us a more balanced understanding of each case. This balance, more often than not, enables us to resolve many disputes prior to expensive and time consuming litigation.
FILING A CHARGE:
For most discrimination cases, for an employee to proceed to a Court, he or she must first file a charge of discrimination. An employee should not file a charge unless he or she has a good faith reason to believe that an adverse employment action taken by the employer was related to a protected trait or was retaliation for a protected activity. Both the EEOC (Equal Employment Opportunity Commission) and SHAC staff are overworked and have few resources and these agencies only have jurisdiction when the matter relates to discriminatory behavior. Neither agency, on its own, has authority to take action, levy fines or damages. The EEOC may contact the Justice Department and file a lawsuit on behalf of the employee and EEOC but this is very rare. The common result of an EEOC or SHAC charge is a right to sue. If cause is found, the agency will make an attempt to conciliate with the employer. However, if the employer determines it does not wish to resolve the matter it is not obligated to do so. EEOC rarely takes a case to Court and the employee will then need to determine whether to file a lawsuit on his own or with a private attorney.
EMPLOYEE REQUIREMENTS:
If you have reason to believe with some objective evidence that your employer has made an employment determination based on a protected trait, you must file a charge prior to the ability to go to Court. The purpose of a charge is to allow the agency (EEOC) or (SHAC) to do an initial investigation of the matter. If you file with SHAC, that agency will over-file with the EEOC also. In South Carolina, a deferral state, the employee has 300 days to file a charge from the date of the discriminatory act in issue. This time period may be easy to determine or not so easy. For example, the date you were fired may be the only discriminatory event. However, it is not so easy to determine when the time started running in other situations such as sexual harassment or other cases where the discrimination has continued for a long time. If you are of sound mind, and you still miss this 300 day period, it is almost certain you will not be able to proceed with a suit.
EMPLOYER REQUIREMENTS WHEN THEY GET A CHARGE FILED AGAINST THEM:
Employers, once a charge is filed formally, will receive notice of the Charge by the agency. Usually, an investigator will contact human resources or its equivalent by letter. The Agency charged with investigating the issue has authority to request information and documents. The EEOC does have statutory subpoena power but it is rarely used in South Carolina. Employers are often asked for a Position Statement and many employers choose to have an attorney or law firm undertake an independent investigation and provide a position statement to the agency.
RIGHT TO SUE:
Once the agency has completed its investigation, regardless of finding cause or no cause, a right to sue letter will be issued. This simply means that the administrative process has been exhausted. Much of the administrative file will be available to the employee and employer through he Freedom of Information Act or subpoena if a subsequent lawsuit is filed. An employee usually has the right to request a right to sue prior to the end of an investigation on his or her request after 180 days have elapsed. Once an employee has received a right to sue letter, they have 120 days (SHAC – under the state law) and 90 days from receipt under Title VII to commence a lawsuit in either state or federal court. As Title VII is a Federal Act, federal jurisdiction exists and the case can be removed if desired to Federal Court even if filed in State Court.
HOW CAN AN ATTORNEY HELP:
Employers: We do represent medium to small employers and most of our employer clients have found that we are just as competent and much less expensive than larger management side labor firms. During the administrative process, we sometimes recommend an internal investigation of the facts by attorneys to allow a measure of privilege and confidentiality along with a position statement to the Agency. We can conduct such an investigation and file a position statement on a flat fee basis which usually is significantly lower than other employment firms.
Employees: Discrimination and employment law is an extremely complicated area of the law and it is difficult to go forward without an attorney. An attorney evaluation may allow you to realize that, although the employment decision may have not been fair, there simply is not enough evidence to move forward with an expensive and time consuming suit. Whether you have received a cause or no cause determination, it is usually worth seeking advice either during or after the administrative process, ie. the EEOC.
HOW CAN WE HELP?
Charles (Chuck) Ormond and Ben Dunn together have over forty (40) years of experience in employment and labor issues and litigation. Both partners have experience representing both employees and employers and, this background, assists them in resolving employment cases justly on either side of the case. Once a case is evaluated, and if the facts create a case which can be filed in Court, you will have both attorneys working for you. The Firm does accept employment cases where the legal fees are on a contingency basis and will meet with you for a one half hour initial consult for $50.00 in order to determine if you have a valid employment case or give legal advice regarding an employment matter.
