In Part 1 of my recap of dinner with EEOC officials on Wednesday, I talked about how the EEOC is conducting outreach to Connecticut attorneys to let them know that the EEOC is ready and willing to handle their discrimination claims.
But one question lingered in the audience: Can an employee use the EEOC even if he or she has state-law discrimination claims? The answer was yes, with an explanation as to how that process works.
EEOC Boston Area Director Robert Sanders highlighted a Worksharing Agreement between his office and the CHRO. Although it is a public document, it is not readily available on the internet; Mr. Sanders — to his credit — said he would look into that. I’ve filed a FOIA request with the CHRO for a copy of the document as well.
(Because I also know that various CHRO officials read this blog , here’s my open request to them: How about posting the worksharing agreement on the CHRO website?)
However, at the dinner meeting, I did have a chance to review it and this Worksharing Agreement is not very different than some of the others that are publicly available, like this one from the Kansas Human Rights Commission. The Agreement says that all claims at the EEOC will be cross filed at the CHRO and that the State of Connecticut waives its right to conduct an investigation on that claim within the first 60 days. Mr. Sanders said that as a result — any complaint at the EEOC will be dual-filed at the CHRO.
The Worksharing Agreement also provides that In instances where the complaint is first filed with the EEOC (even if it has state claims referenced), the EEOC will investigate; in instances where the complaint is filed with the CHRO first (even if federal claims are referenced), the CHRO will investigate such claims.
Notably, the employer has no say on where the complaint should be investigated; it will be dictated by where the employee filed the claim.
This forces the employee to make an interesting decision:
- If the employee proceeds at the CHRO, the process may be mired down for many months in the investigatory backlog; the EEOC might be a better option if that is a concern because it moves quicker and has a good mediation program that resolves nearly 70% of the cases.
- On the other hand, there is less information exchanged by the employer and employee at the EEOC; thus, if an employee is using the administrative process for free discovery, the CHRO may be the better choice.
In any event, employers should keep an eye out to see if the EEOC’s outreach in Connecticut will lead to substantive changes in the way complaints are filed. One thing is clear: Plaintiff’s attorneys who are not happy with the CHRO will find a welcoming voice at the EEOC for now.