EEOC Investigation v Right-to-Sue Letter

EEOC-right-to-sue-letterIn the vast majority of cases, DFEH or EEOC investigation is just a formality in employment cases that doesn’t mean anything one way or another. A finding of discrimination or retaliation by those agencies is very rare . Usually, you would get a letter from them that says in so many words “We weren’t able to determine whether there is sufficient evidence of discrimination, and we are closing our file. Here is your right-to-sue letter. If you want to file a case against the employer, feel free to do so on your own with the assistance of a private attorney.”  The reason for this is that both EEOC and DFEH have limited staff and limited sources, while receiving way more claims that they can possibly handle,  so they have to pick and choose which few cases to look into more closely and which claims to pursue as aggressively as possible. These agencies usually pick the most egregious cases of discrimination and harassment to pursue against larger companies, in part in order to set an example to other large employers and in part in order to potentially recover greater penalties and fines. In other words, these agencies are more likely to go after those cases that might potentially be newsworthy.

The question that you have to ask yourself as a potential claimant in a discrimination or wrongful termination case is this – when should you request the DFEH/EEOC to investigate your complaints and wait for the agency to issue their findings (which often takes many months or even more than a year depending upon how busy your local agency office is), and when should you skip all that and just request an immediate right to sue letter without any kind of investigation?

If you have been advised that you have a solid wrongful termination case, there is no reason for waiting for the investigation to complete or even begin. You are better off getting that right-to-sue letter and filing the case sooner than later, especially if your case depends on the testimony of witnesses. This is because witnesses tend to move, change their phone number, forget things, etc., so getting them involved sooner than later in order to prove your case is a good idea. In a case where a manger said something discriminatory or retaliatory to an aggrieved employee in a presence of just one witness, that single witness’ testimony or signed declaration can be extremely helpful or even critical in establishing the case, since that manager will of course deny ever saying anything discriminatory.

On the other hand, if your situation is more complicated – for instance, if you are still employed with that employer, and you experience discrimination which your management and HR failed to do anything about, but you are not quite sure whether it’s a good time to file a lawsuit, then filing a charge of discrimination with DFEH or EEOC and requesting them to investigate might be a good idea. This is because either of these agencies will send a notice of charge to the employer with a questionnaire that would require your employer to formally address your allegations. This might or might not encourage your employer to take your discrimination allegations more seriously and do something about fixing it. If, on the other hand, your employer further retaliates against you by firing you shortly after they receive DFEH/EEOC notice of your charge, which is against the law, you will likely have a stronger retaliation and wrongful termination case against that employer.

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