A discrimination claim must begin by the filing of a charge of discrimination with an administrative agency such as the EEOC, Illinois Department of Human Rights, Cook County Commission on Human Relations or the Chicago Commission on Human Relations. Some agencies require that a charge be filed in person, while others permit employees to submit charges that were prepared outside of the agency. Some of the agencies accept walk-ins, while others such as the EEOC require that an employee make an appointment to come in and complete the charge information.
In any event, within about 10 days after a charge is filed, the administrative agency sends a copy of the charge to the employer and asks the employer to submit a written response within a certain number of days. The agency would then begin an investigation of the allegations in the charge.
Before starting the investigation, most agencies attempt to resolve the charge through a mediation process. The mediation is an informal process during which the employee and the employer's representative meet face-to-face with a mediator to attempt to settle the case. Mediators are generally not employees of the agencies. Instead, they are mostly retired judges, attorneys, and others professionals that are trained in alternative dispute resolution. The mediation process is voluntary and neither the employer or employee is required to settle the case. As there are no judges present in the mediation, the employer and employee generally determine the terms of the mediation and can reach whatever agreement that is acceptable to both sides.
The mediation process is confidential. As such, nothing that is stated during the mediation process can be used during the court proceedings or investigation of the case. The person who acts as the mediator has no role in the future investigation of the charge or in the lawsuit. As such, if mediation fails, the discussions held during the process do not have an impact on the ultimate determination of the case. Most mediators require that all participants sign a confidentiality agreement before the mediation begins. If a settlement is reached during the mediation, the terms of the agreement are generally summarized into a lengthy settlement agreement which the parties have to sign in order to complete the settlement.
If the case does not resolve through mediation, the agency where the charge was filed will assign the case to an investigator who will begin a formal investigation of the allegations in the charge. The investigator is not made aware of any facts that were discussed during the mediation conference. Mediators also do not act as investigators. This ensures that the individual investigating the case is not influenced by the mediation conduct of the parties.
Investigators use a variety of tools to determine whether the employer discriminated against the employee. They speak to co-workers, managers, and supervisors. They also request documents, obtain witness statements and interview company officials. In some cases, the investigator will issue subpoenas to obtain documents necessary to reach a decision. It is therefore important that the investigator be provided with names, addresses, and telephone numbers of all possible witnesses. It is equally important to provide the investigator with any important documents and other material that may help him determine whether the employer violated any laws. The investigator may also need the names and addresses of individuals who may have been treated in a similar manner and those that were treated differently in order to determine whether the Complainant (charging party) was the victim of discrimination.
Sometimes, an investigator will request a Complainant interview. During the interview, the investigator will ask the Complainant specific questions regarding the allegations in the charge to clarify any questions that exist. The investigator also uses this interview to obtain additional details regarding the allegations in the charge.
The investigation process lasts from approximately 6 months to 2 years or more depending on the agency. The investigator generally makes the parties aware of the current backlog of cases and an estimate of a possible completion date. Some agencies such as the EEOC allows employees to request a right-to-sue letter to take their case to federal court before the investigation is concluded. Once after a right-to-sue letter is issued, the EEOC terminates its investigation of the charge. It is a good idea to consult with an attorney to help decide whether to request a right-to-sue letter to go to federal court before the investigation concludes.
After the investigation is complete, the investigator prepares a report that summarizes the findings of the investigation and whether there is a reasonable basis to believe that the employer may have engaged in discrimination against the Complainant.
If the agency determines that there is a reasonable basis to believe that there has been a violation by the employer, it will attempt to resolve the case though a conciliation process which, like the mediation, is a voluntary process. The investigator attempts to settle the case to avoid the filing of a lawsuit. The conciliation process is much like the mediation process. If the case is resolved through conciliation, no lawsuit is filed and the employer and employer will prepare and sign a settlement agreement
If no agreement is reached through conciliation, the EEOC will issue the Complainant a right-to-sue letter which requires that he file a federal lawsuit within 90 days of receiving the letter. In the case of the Illinois Department of Human Rights and other agencies, the charge is referred to an administrative law judge who will preside over the case and a hearing/trial.