College Employees: Filing an EEO Complaint

What Is an EEO Complaint?

An EEO complaint is an employee's federal administrative filing complaining of an employer's unlawful discrimination. An EEO complaint seeks the federal administrative agency's investigation, finding of discrimination, and order for relief. In short, the employee filing an EEO complaint is asking for federal agency help to relieve the employee from unlawful discrimination and make the employee's working conditions lawful.

The Statutory Basis for an EEO Complaint

Congress enacted the federal Civil Rights Act in 1964. The Act outlawed race discrimination in employment, housing, education, and other areas. Congress codified the employment provisions of the Civil Rights Act in the Act's Title VII. When someone refers to Title VII rights or a Title VII claim, they are referring to an employee's right to an employer's relief under the Civil Rights Act's employment provisions. An EEO complaint seeks enforcement of those rights and related federal rights.

EEOC Enforcement of Federal Anti-Discrimination Laws

The Civil Rights Act's Title VII employment provisions didn't just leave the aggrieved employee to sue the unlawfully discriminating employer in court. Instead, the Act authorized the federal administrative branch to form the Equal Employment Opportunity Commission to enforce Title VII. The EEOC has statutory authority and responsibility to investigate complaints of unlawful discrimination by employers who are subject to Title VII.

Employers Against Which the EEOC Enforces

Anti-discrimination laws that the EEOC enforces generally apply to employers of fifteen or more employees (twenty or more employees for age discrimination claims). EEOC enforcement actions, in other words, reach employers with workforces of any significant size. The EEOC's broad reach to employers of any significant size means that the EEOC can take enforcement action against most public and private colleges and universities. If you are an employee of a public or private college or university, then you very likely have the right to seek EEOC enforcement of your federal anti-discrimination rights. EEOC enforcement may also reach certain labor unions and employment agencies.

Employees Who May File EEO Complaints

Anti-discrimination laws that the EEOC enforces protect both labor and management employees. Unlike labor laws, anti-discrimination laws generally make no distinction among classes of employees. Whether you are a supervisor or subordinate employee, you very likely have the right to seek EEOC enforcement of your anti-discrimination rights. That broad EEOC reach means that college or university administrators, faculty members, athletic coaches, academic staff members, placement personnel, operations and custodial staff members, teaching and research assistants, and resident assistants may all generally seek EEOC enforcement of their anti-discrimination rights.

Forms of Discrimination Subject to EEOC Enforcement

The federal Title VII only prohibits discrimination based on certain protected characteristics or classes. Successive federal laws have added to those protected characteristics or classes since Congress' initial passage of the Civil Rights Act. Current federal law prohibits employers from discriminating against employees or applicants for employment because of race, color, religion, sex, pregnancy, national origin, age forty or older, disability, or genetic information. Under the Supreme Court's decision in McDonald v Santa Fe Trail Transportation Company, federal anti-discrimination laws protect employees against discrimination based on these classes even if the complaining employee is a member of a majority rather than a minority class. State laws may add other protected characteristics or classes such as height, weight, marital status, or family status, but the EEOC would not enforce those discrimination claims.

Legitimate Business Reasons for Job Action

Employers may lawfully affect an employee's employment for many reasons, such as unexplained absenteeism or misconduct on the job. To fire, suspend, demote, or otherwise discipline an employee solely for unexplained absenteeism or for job misconduct is not to unlawfully discriminate. The outcome of many employment discrimination cases turns on whether the employer had a legitimate business reason or instead unlawfully discriminated based on a protected class or characteristic. Since the 1973 McDonnell Douglas Supreme Court decision, federal courts have applied a burden-shifting framework in those cases. The McDonnell Douglas framework requires the complaining employee to show the employee's protected characteristic or class and the employer's adverse job action. The employer must then show a legitimate business reason for the action, following which the employee must prove that asserted reason to be a pretext for unlawful discrimination. Navigating this framework requires expert legal representation.

Types of Discrimination Subject to EEOC Enforcement

To violate the federal anti-discrimination laws that the EEOC enforces, the employer must adversely affect some term, condition, or privilege of employment. It is not enough that an employer unlawfully discriminates based on the employee's or prospective employee's protected characteristic or class. The employer must generally also take some adverse job action, other than with harassment claims the next section describes. Common types of unlawfully discriminatory actions against which federal anti-discrimination laws protect include discrimination in:

  • job posting or advertising;
  • job testing or qualifications;
  • job interviewing and hiring;
  • training and development opportunities;
  • wages and benefits;
  • promotions and demotions;
  • layoffs and furloughs;
  • job termination, discharge, or firing.

Harassment Claims Subject to EEOC Enforcement

Several federal anti-discrimination laws that the EEOC enforces also prohibit the harassment form of unlawful discrimination. According to the EEOC's own summary of elaborate case law, harassment is “unwelcome conduct ... based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history).” For the EEOC to intervene, the harassment must be both a condition of continued employment and “severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” While petty slights are not enough, the EEOC may commonly recognize any of these more serious actions as unlawful harassment:

  • offensive jokes, slurs, epithets, or name-calling;
  • physical assaults or threats;
  • intimidation, ridicule, or mockery;
  • insults or put-downs;
  • offensive objects or pictures; and
  • other interference with work performance.

The EEOC looks at the entire record to determine whether unlawful harassment has occurred. That record may include the nature of the conduct and the context in which incidents occurred. The EEOC determines case by case whether harassment is severe or pervasive enough to be unlawful.

EEOC Enforcement Against Employer Retaliation

A large number and percentage of the claims that the EEOC receives and investigates involve allegations of employer retaliation for the employee's exercise of federal anti-discrimination rights. Federal anti-discrimination laws prohibit employers from harassing or otherwise retaliating against employees for such things as:

  • filing or encouraging the filing of a discrimination charge;
  • submitting to EEO or other investigator interview;
  • supplying witness statements or other documentation;
  • testifying in any deposition, hearing, or trial; and
  • opposing employer practices the employee believes discriminatory.

Employer Responsibility for Unlawful Harassment

Employees who suffer workplace harassment may wonder at what point the employer becomes responsible for the harassment. Employers are responsible for any supervisor unlawful harassment resulting in an adverse employment action like firing, demotion, failure to promote, or reduction in wages. Employers are also responsible for a supervisor's harassment when it results in a hostile work environment, unless the employer proves it reasonably tried to prevent and promptly correct the harassing behavior or the employee unreasonably failed to participate in the employer's preventive or corrective opportunities. Employers are also responsible for harassment by non-supervisory co-workers over whom the employer has control if the employer knew or should have known of the harassment but failed to take prompt and appropriate remedial action.

Forms of EEO Relief

Federal anti-discrimination laws generally offer the aggrieved employee make-whole remedies and relief. The legislation's goal is to put the affected employee in as close a position as possible as if the unlawful discrimination had not occurred. With some variations depending on the specific federal law enforced, EEOC remedies, or remedies by private enforcement through court action, may thus include:

  • job hiring, recall, or reinstatement;
  • job restoration or promotion;
  • lost wages and benefits;
  • injunctions against further unlawful employer actions;
  • orders for training or other remedial and preventive employer actions;
  • attorney's fees, expert witness fees, and court costs;
  • out-of-pocket costs for job search and training;
  • compensatory damages for mental and emotional distress; and
  • punitive damages to punish and deter the employer, with limits depending on the employer's number of employees.

Why File an EEO Complaint

College and university employees can have good reasons to file an EEO complaint. The first good reason would be because the employer has refused to stop or correct its unlawfully discriminatory action. An affected employee or prospective employee should generally first notify the employer of its unlawfully discriminatory action. Employers make errors that they are sometimes willing to correct. College and university employers can be especially sensitive to claims that they have violated anti-discrimination laws. The college or university employee who notifies the employer of suspected unlawful discrimination may get the pay raise, promotion, or other relief they seek. But if the employer has firmly and finally refused, then filing an EEO complaint may get the employer's better attention or EEOC relief.

Exhausting Administrative Remedies. A second good reason to file an EEO complaint is that federal anti-discrimination laws, with certain exceptions, generally require the employee to exhaust EEO administrative remedies before filing a lawsuit to enforce the same rights. The policy behind that requirement is to try to get the parties to resolve the dispute efficiently through streamlined administrative procedures before beginning costly litigation. In most cases, an aggrieved employee must be able to show the court that the employee first complained to the EEOC. If the EEOC does not reach a decision on the employee's complaint within 180 days, or has decided the complaint without the employee's sought-after relief, then the employee may generally commence the court litigation. Be sure to consult experienced legal counsel on these questions because of the several exceptions and short time limits.

When to File an EEO Complaint

The EEOC follows strict time limits within which the aggrieved employee must file the EEO complaint. Generally, an employee must file an EEO complaint within 180 days of when the employer's discriminatory action occurred. A college or university employee suffering an unlawfully discriminatory firing or demotion, for instance, would have just 180 days from the firing or demotion date to file the EEO complaint. Federal law extends the 180 days to 300 days if a state or local agency enforces a similar law prohibiting discrimination on the same basis. Federal law does not extend to 300 days the time limit for age discrimination claims enforced only by a local, rather than a state, agency. Once again, the several exceptions and short time limits warrant promptly consulting experienced legal counsel when suffering suspected unlawful discrimination in employment.

How to File an EEO Complaint

Generally, an aggrieved employee files an EEO complaint by going to the nearest federal EEOC office for an intake interview or mailing the complaint to that office. The EEOC website provides a map of its field offices, searchable by your zip code. Subject to pandemic restrictions, field investigators may prefer in-person filings so that they can assist the employee in preparing the complaint. Including necessary language in the EEO complaint can challenge the claimant. Experienced legal counsel can assist with drafting the EEO complaint to ensure that its factual statements are complete and accurate, and that the complaint also satisfies the anti-discrimination laws' requirements.

Get Expert Academic EEO Lawyer Help

EEOC field offices receive thousands of complaints annually while having limited personnel and resources. While a complaint against a college or university may catch an EEOC investigator's attention, the EEOC does not act on all or even a large percentage of valid complaints. If you require assistance deciding whether to file an EEO complaint or drafting and filing the actual complaint, then retain attorney Joseph D. Lento of the Lento Law Firm. In doing so, you are far more likely to make the right decision and to file a sound complaint. And if the EEOC has failed or refused to act on your EEO complaint, then ask Attorney Lento and his law firm to review your EEO matter. Rely on a national college and university attorney for the best representation. Call 888-535-3686 to schedule a consultation, or use the online service.

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If you, or your student, are facing any kind of disciplinary action, or other negative academic sanction, and are having feelings of uncertainty and anxiety for what the future may hold, contact our offices today, and let us help secure your academic career.

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