If I have a complaint of discrimination in the workplace, should I first complain to HR or the EEOC? What’s the difference between the two?

Answer

If you have an allegation of workplace discrimination, you first need to file a complaint using the company's defined complaint process. Usually, this means reporting the matter to the company’s Human Resources or Compliance department, a member of management, calling the Company's ethics line, etc. Your company should have a written investigation policy available and communicated to all employees.

Unless it's a unionized situation, employers typically deal directly with their workers during investigations rather than through an employee's attorney or other representative spokesperson/advocate. Although the HR investigator has an obligation to be a neutral, investigative fact-finder, he or she is usually also an employee of the company with all the positive and negative baggage that that implies. The HR investigator controls the process – who is interviewed, what is asked, the time it takes to investigate, communication of results back to you, etc.

Technically, the HR investigator is looking for violations of company POLICIES rather than the law per se. Your Company should have an EEO Policy, for example. Ideally, the Company then uses the results of the investigation to make changes so that discriminatory behavior no longer continues. This might include training, discipline for the offender up to and including discharge, job changes, etc.

In contrast, the EEOC (Equal Employment Opportunity Commission) is a federal government agency that investigates employment discrimination charges. Their role is to enforce federal LAWS prohibiting employment discrimination. Although you may consider them to be the "big guns" you should also understand that they are backlogged and s-l-o-w. On average, a charge of discrimination -- a complaint against one's employer -- takes about a year with the EEOC, although I've personally been aware of some that stretched out to about two-and-a-half.

A person who files with the EEOC can choose to interface directly with the Agency on the charge or hire an attorney do so for them (at their own expense, of course). The complaint is administrative in nature, meaning this is not a trial. However, if you want to sue your employer for discrimination you MUST first file a charge with the EEOC. Most EEOC investigators don’t re-investigate the case by visiting the worksite and interviewing witnesses. Instead, EEOC investigators review submitted documents and resolve “sticky” questions via phone interviews with Company representatives.

The EEOC on some occasions chooses to take a complainant’s case on and sue the employer. This is rare, obviously. Alternatively, the EEOC can issue a right to sue letter so that the complainant can sue the employer, or they may mediate a case, if parties are willing. Note that there’s a variety of potential solutions depending on the type of discrimination at issue, including but not limited to monetary penalties, job reinstatement, and promotion.

Other points that you need to be aware of include the following:

• Some states, cities, and local jurisdictions have anti-discrimination laws that go beyond federal protections, thus workers find it helpful to file with both the EEOC and the Fair Employment Practices Agency (FEPA).

• Not all federal anti-discrimination laws apply to small businesses (although state laws may apply – always check your specific jurisdiction). Here is the EEOC’s listing of which federal anti-discrimination laws apply to which businesses based on their number of employees: https://www.eeoc.gov/employers/smallbusiness/requi...

• There are strict filing deadlines.

Does all of this sound complicated? You betcha! However, it shouldn’t dissuade you from seeking justice for yourself.

Updated on August 6, 2019

Original Article:

Employee Complaint Investigations: What Human Resources Won't Tell You
By FlourishAnyway
working

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