§5.2 A. Federal Eeoc Procedure

• Jurisdiction: New York

A. Federal EEOC Procedure

It should be understood that filing with one of the agencies, either the N.Y.S DHR or EEOC is considered a joint filing with the other, because they have worksharing agreements.³⁸⁶ Just be certain your local jurisdiction's agency has a worksharing (joint filing) agreement because, if not, filings should be made individually with each agency on a claim.³⁸⁷ However, even with worksharing, generally the agency with which the original charging document is filed is the lead agency, and keeps the filing for determination.³⁸⁸ If the state/local agency makes a determination on matters of federal law, and there is a worksharing agreement with the EEOC, an appeal/request for review can be made to the EEOC (within 15 days of the state/local agency's determination).³⁸⁹

Under federal law, before a complainant may file their claim in U.S. District Court (or state court having concurrent jurisdiction, for that matter) under certain specific statutory provisions, a filing must first be made with the EEOC (or the local agency under a worksharing), and administrative remedies must be exhausted. Absent exhaustion, claims will be dismissed if filed in federal court.³⁹⁰ However, this exhaustion requirement does not exist for all federal claims.³⁹¹ The EEOC filing requirement exists for claims under Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Genetic Information Nondiscrimination Act (GINA), the Rehabilitation Act,³⁹² and claims alleging retaliation thereunder.³⁹³ A similar administrative exhaustion requirement, through a procedure other than EEOC (i.e. through an impartial hearing procedure set out by statute), is also required for claims under the Individuals with Disabilities Education Act (IDEA), including claims brought under the ADA and Rehabilitation Act if those claims relate to allegations of denial of a free appropriate public education (FAPE); if not, then the IDEA's exhaustion requirements do not apply.³⁹⁴

Federally, a filing must be made within 180 days of the act complained of, or if the state or local jurisdiction has its own Human Rights Law and agency, then a filing must be made within 300 days.³⁹⁵ Failure to exhaust the administrative remedies on the federal level results in dismissal of the relevant federal claims; and failure to file within 300 days of actions that are discrete acts—and not continuing violations³⁹⁶—results in dismissal of claims as time-barred.³⁹⁷ Senior U.S. District Judge Lawrence E. Kahn held just that in Dacier, evaluating plaintiff's claims to determine whether plaintiff raised continuing violations or discrete acts in the complaint, since plaintiff missed the 300-day filing deadline for several claims. The Dacier plaintiff sought relief under Title VII for alleged "unlawfully discriminatory hiring pattern" and discrimination following several failure to promote instances in the years 2010, 2012 and 2016.³⁹⁸ Plaintiff missed the filing deadlines for the 2010 and 2012 claims, filing with the EEOC only once, sometime in 2016 after the third failure to promote instance complained of.³⁹⁹ Judge Kahn held that each act of alleged failure to promote was a discrete act, not a continuing violation. Therefore, the 2010 and 2012 claims were dismissed, with the court further holding that the time-barred claims (2010 and 2012 claims) remained barred even if they related to timely filed charges (the 2016 claim in this particular case).⁴⁰⁰

The EEOC procedural process starts with a filing similar to a complaint in a court of law, although the complainant's filing (charge) is usually made ex parte, meaning that the filing is submitted to the EEOC without a copy being sent by the complainant or complainant's counsel to the opposing/respondent organization.⁴⁰¹ The EEOC will provide a copy of the charging documents to the respondent, and seek a response position statement. That response is also usually submitted ex parte. The EEOC will thereafter provide the response position statement to the complainant, and ask for a rebuttal. Among other authority, the EEOC and its investigators are empowered to speak with witnesses, make site visits, and call the complainant and counsel into the EEOC's offices for questioning.⁴⁰²

If either party requires additional time to gather materials or provide response statements, the party (or their legal counsel if they are represented), should request more time from the Investigator and explain why it is needed. Depending on the nature of the case, sometimes only a few weeks is provided, other times more or less than that may be allowed. Regardless, never ignore charges that are received. The agency can and will proceed without a party's participation.

At the beginning of the case, the EEOC may inquire if the parties wish to mediate and attempt resolution, or the parties may make this request of the EEOC.⁴⁰³ The mediation attempt must be mutually agreeable; one party cannot force the other to mediate. If mediation is attempted but not successful, the matter will be reassigned from ADR to Investigation. Investigation is the division that will make a determination whether there is probable cause to believe discrimination occurred on the charge.

If cause is found by the EEOC, then the EEOC will attempt conciliation (mediation after a finding of probable cause)—a process required by law.⁴⁰⁴ However, again, this process must be mutually agreeable, and if conciliation does not resolve the matter then the EEOC will close its investigation and issue a "Right to Sue" notice/letter to complainant.⁴⁰⁵ The Right to Sue is a notice from the EEOC advising complainant that the agency has closed its investigation, and clears the way for the matter to proceed to a filing in federal or state court under the federal statutes.⁴⁰⁶

Should probable cause be found by the EEOC, and conciliation fail, the agency could also choose to bring a lawsuit on behalf of the complainant, although that only happens in a small percentage of cases. Most of the time, the parties will receive the Letter of Determination, and thereafter the Notice of Right to Sue if conciliation either fails or is not pursued by the parties, clearing the way for complainant to proceed to court either pro se (representing themselves) or represented by an attorney. Should the EEOC not find probable cause that discrimination occurred as alleged by the complainant, the EEOC simply issues a Dismissal and Notice of Rights, which includes the Right to Sue.⁴⁰⁷ Interestingly, even if the EEOC does not find cause, the complainant may still proceed to court as a plaintiff on the same federal claims.

Once the Right to Sue is issued, the complainant has 90 days from the date of receipt to file a complaint on the federal charges in federal or state court, or they are forever barred on the claims arising out of the facts and circumstances presented to the EEOC.⁴⁰⁸ The 90-day period has been determined a statute of limitations for these purposes,⁴⁰⁹ therefore watch the clock! Such 90-day limit also applies to arbitration. If the arbitration agreement does not refer to any other statutes of limitations, the 90-day limit applies the same as it would for a filing in court.⁴¹⁰ Further, as a statute of limitations, the court will only toll the time for extraordinary circumstances.⁴¹¹

One should also be cautious to observe that although New York State law speaks of elections of remedies (i.e., choosing either the administrative agency route or the court of law route), such is only the case for state law claims. Federal law claims, like those under Title VII, the Rehabilitation Act, the ADA, the ADEA, or GINA (as discussed earlier), must first go through the EEOC as required by federal law, as mentioned earlier. A complainant/plaintiff cannot attempt to circumvent the agency filing requirement by instead filing a complaint initially in state court for both...