The purpose of this post is to help employees understand the EEOC process, navigate that process, and ultimately get their case to court.
- What claims go through the EEOC. To be on the safe side, you should file an EEOC charge in any situation where you have been discriminated or sexually harassed at work, or, retaliated against for reporting unlawful discrimination or sexual harassment. So: Sexual harassment, race discrimination, age discrimination, sex discrimination, disability discrimination, religious discrimination, and more. Or retaliation for reporting any of these things. If that’s the situation, you file an EEOC charge. One thing to note: A good lawyer will always pursue race discrimination claims under 42 U.S.C. 1981 (the original Civil Rights Act of 1866). That is because 42 U.S.C. 1981 claims (a) have no caps on damages and (b) have a 4-year statute of limitations. That is completely outside of the EEOC process. But for a variety of reasons, it can still be beneficial to file a charge with the EEOC. I’ll explain this later.
- What the EEOC is and is not. The EEOC is not a court. The EEOC is not a judge. The EEOC is not your lawyer. The EEOC is not an advocate for you. In 99.9 percent of all cases, the EEOC has zero interest in your case. The EEOC will not do anything for you. The EEOC is basically powerless. The EEOC process was created to serve as an obstacle to folks going to court. When Congress passed the Civil Rights Act of 1964, some politicians were concerned that discrimination cases would flood the courts. So they created the EEOC process as a hoop that people have to jump through. If you don’t file an EEOC charge and go through that process, you can’t file a lawsuit in court, and you lose your rights. That was by design. So, for your purposes, the EEOC is just a box that you have to check off the list. You file your charge on time. You get your Right to Sue. That’s it.
- Assume you only have 180 days. You have to file a charge of discrimination with the EEOC within the relevant deadline. That deadline is based on the jurisdiction where the claims arose. In most jurisdictions, this deadline will be 300 days from when the discrimination or retaliation occurred. But in some jurisdictions, the deadline is only 180 days. If you are not absolutely certain of the deadline, then you need to be proactive and immediately get to work on this. Every week, dozens of people from all over the country contract our office about discrimination or retaliation that happened 2 or 3 years ago. And that is just not reality. I don’t care who that offends. Pursuing your rights cannot be an afterthought. If it takes you 2 years to “look into” pursuing a discrimination or retaliation claim, then you were never serious about it in the first place.
- What an EEOC charge requires. Again, this goes back to understanding what the EEOC is. The EEOC is just a hurdle to jump. It’s just a box to check off. Lots of people think that their EEOC charge needs to include every single detail and be supported by mountains of evidence. That is nonsense. EEOC investigators always request more evidence. Or a response to a position statement. But that is a waste of time. The EEOC is not going to do anything with that stuff anyway. The EEOC is never going to do anything at all. Your EEOC charge just needs to include the basics. You fill out the form. Names. Addresses. Contact information. As for the narrative, you explain what happened in a paragraph. That’s literally it. For example: In June 2024, I was assigned a new supervisor named Joe Smith. Mr. Smith immediately began making comments about my age. He asked why I hadn’t retired yet. He asked me when I was planning to retire. He called me old and slow. He said he wanted “young blood” on his team and not “used up old men” like me. Up until that time, my performance reviews had always been positive. Three months after becoming my supervisor, Mr. Smith gave me a negative performance review that contained a number of false statements. In September 2024, I complained to HR about age discrimination. When Mr. Smith found out, he got angry and told me that nobody would ever believe my word over his. In December, I was laid off. The three oldest people in our division (including me) were all let go. I believe I have been discriminated against in violation of the Age Discrimination in Employment Act and the Florida Civil Right Act. That is literally it.
- Right to Sue letter and deadlines. The only reason to keep going back and forth with the EEOC investigator and submitting more documentation is to stall and buy more time. Even then, that’s probably unnecessary because the EEOC normally takes forever to issue a Right to Sue. Once you get a Right to Sue, you only have 90 days to file a lawsuit. If you don’t file a lawsuit within that 90-day window, you lose your claims and it’s game over. Once again: Countless people reach out to our office every week with less than 30 days left. That is not reasonable. Let me be clear: It is not my firm’s responsibility to step in at the last minute and solve your problems. Likewise, your urgency is not my urgency. We get hundreds of these cases. We investigate and evaluate these cases in the order they come in. People show up with 20 days left and expect me and my colleagues to scramble to help them. Again: That is not reality. Now, a bunch of maladaptive crazy people will show up throwing a temper tantrum and saying, “But JP says he helps people! So he has to help me!”. That’s not how it works. Sure, I help people. I help lots of people. But I am under no obligation to help any single one of you. And I am certainly under no obligation to help people who show up at the last minute screaming for my attention and acting like I have to respond to them like I’m an EMT. The time for you to get a lawyer is not when you get a Right to Sue and are on the clock. If you don’t already have a lawyer in the EEOC process, then your case will probably sit there for well over a year. That gives you plenty of time to find a lawyer if you are actually serious about finding one.
- Be realistic. Many of you struggle with this. You are not lawyers. You don’t know the law. You don’t understand how litigation works. But you assume that your case is the strongest case and the most important case in the history of the world. You also assume that your case is worth $2 million. And 999 out of 1000 times, your perception is completely delusional. These are tough cases. Even when you have strong facts and ugly facts on your side, these are still tough cases. Why? Well, primarily because of judicial hostility toward discrimination cases. Federal courts in certain parts of the country have decided that they just don’t like discrimination cases. So they dispose of those cases at the summary judgment stage. They throw out real cases of discrimination. Then it requires an appeal to revive those cases. That time and work isn’t free. Who is paying for all that? Not you. Get real. Your contingency fee doesn’t even begin to pay for that risk. Then, on the back end, even when a plaintiff wins one of these cases, federal courts go to great lengths to prevent civil rights lawyers from getting paid handsomely for their efforts. The entire system is set up to (a) make it difficult for people to pursue these types of cases and (b) make it economically unattractive for lawyers to do this sort of work. Understand that. So your mediocre case or your jump ball case just doesn’t move the needle. Many of you cannot step back and assess your case objectively. But you have to. If a well-regarded law firm considers your case and rejects it, don’t throw a temper tantrum. Go get a second opinion. And after two or three well-regarded law firms have turned you down, maybe accept the fact that you don’t have a plausible case. If you just can’t live with that, file your own lawsuit pro se. As soon as you file it, ask the court to put out a request to members of the bar to represent you pro bono.
Jonathan Pollard is the founder of Pollard PLLC. Pollard and his colleagues have been recognized by Super Lawyers and Chambers and Partners. The Firm prosecutes discrimination, retaliation, and sexual harassment cases while also defending high stakes non-compete and trade secret cases. The Firm has offices in Florida and Missouri but litigates cases nationwide. They can be reached at 954-332-2380.
