EEOC & TWC Charge of Discrimination & Representation
Practicing for 25+ years Austin Employment Lawyer and Houston Labor Attorney Jack Nichols can represent you in the Equal Employment Opportunity Commission’s (EEOC) or the Texas Workforce Commission’s (TWC) investigation into your complaints of discrimination, retaliation, harassment and hostile work environments
What is the Equal Opportunity Employment Commission?** What is the EEOC?** What is the Texas Workforce Commission?** What Is TWC?** What does the EEOC and TWC do?**
The EEOC is a Federal Agency charged, at least in part, with investigating certain complaints of discrimination and retaliation. The Texas Workforce Commission is an agency of the State of Texas which does the same. The Texas workforce Commission also makes determinations on claims for Unemployment Insurance Benefits.
When Should an Employee Complain to the EEOC or TWC about Discrimination?**
Timely filing a Charge of Discrimination with either the Equal Employment Opportunity Commission (“EEOC”) or the Texas Workforce Commission, Human Rights Division (“TWC”), is a prerequisite (an act which is required to be performed before the lawsuit is filed) to an employee bringing a lawsuit for discrimination, retaliation, harassment, including but not limited to sexual harassment, and a hostile work environment, under certain statutes, including, but not limited to: Title VII (Race, National Origin, Color, Sex, Sexual Orientation, Sexual Preference, Gender Identity, Religion, etc.), the ADA (Disability), the ADEA (Age) and the PDA (Pregnancy). Properly filing a Charge of Discrimination and raising all of an employee’s claims of discrimination and other unlawful conduct is known as “Exhaustion of (or Exhausting) Administrative Remedies.” Discrimination claims brought under 42 U.S.C. §1981, as well as certain other statutes, are not required to be first filed with the EEOC, but are subject to the “Statue of Limitations.” A Statute of Limitations is a deadline by which a lawsuit must be filed or, otherwise, the right to bring a lawsuit may be forever forfeited. Accordingly, any employee who believes that they have be subjected to unlawful discrimination or retaliation should consult an attorney immediately.
Depending on the circumstances, however, an employee of a private employer may be required to first complain to the employer using the employer’s internal complaint procedures in order to be successful in claims of Harassment or a Hostile Work Environment under Title VII (Race, National Origin, Color, Sex, Sexual Preference, Sexual Orientation, Gender Identity, Religion etc.), the ADA (Disability), the ADEA (Age) and the PDA (Pregnancy) against their employer. The failure to do so, may give rise to an affirmative defense against an employee’s claim of discrimination, which may be fatal to all or part an employee’s lawsuit. See our Discrimination in General Page for more information.
In order to be able to later file a lawsuit in State Court, the Charge of Discrimination must be filed with the Texas Workforce Commission, Human Rights Division, within 180 days of the date of the alleged discriminatory, retaliatory, harassing and/or hostile act. In order to be able to later file a lawsuit in Federal Court, the Charge of Discrimination must be filed with the local field office of the EEOC, within 300 days of the date of the alleged discriminatory, retaliatory, harassing and/or hostile act. The Charge of Discrimination may be jointly filed with the EEOC and TWC, however, in order to bring a lawsuit in State Court, the Charge of Discrimination must be jointly filed with the EEOC and TWC within 180 days of the date of the date of the alleged discriminatory, retaliatory, harassing and/or hostile act. A lawsuit may still be filed in Federal Court, but not State Court, if the Charge of Discrimination was jointly filed after 180 but before 300 days of the date of the alleged discriminatory, retaliatory, harassing and/or hostile act. A claim of sexual harassment under Texas state law must be filed with TWC and/or jointly with TWC and the EEOC within 300 days of the act of sexual harassment. Failing to timely and properly prepare, file or raise certain allegations in the Charge of Discrimination to either the EEOC or the TWC, may result in an employee being barred from bringing all or part of their claims in a lawsuit. This is known as a failure to Exhaust Administrative Remedies. For this reason, employees should engage an attorney to assist in the preparation and filing of a Charge of Discrimination.
Practically speaking, once an employee makes a complaint of discrimination or files a Charge of Discrimination, an employer should be extremely careful in how it reacts, and should immediately consult an attorney. Taking the wrong action could turn a beatable claim of discrimination into a very difficult claim of retaliation (see our Retaliation in General page), which is significantly easier for an employee to prove. While an employee must prove that he has actually suffered discrimination to support a claim of discrimination, an employee only has to have had a “good faith reasonable belief” that he had suffered from discrimination to support a claim of retaliation for making a complaint of discrimination. The latter is much easier to prove. Please see our Retaliation in General page for more information.
What does the Equal Employment Opportunity Commission (“EEOC”) do? What does the Texas Workforce Commission (“TWC”) Do?** Does and Employee Need and Attorney to File a Charge of Discrimination?** Should an Employee be Represented by and Attorney Before the EEOC or the TWC?**
After receiving a Charge of Discrimination, the EEOC or the TWC will usually investigate it. The employer will be asked to submit a Position Statement and explain why they are not guilty of discrimination, retaliation, harassment, a hostile work environment or other illegal conduct. Both parties may be asked questions and to submit evidence in support of their position. The parties may be asked if they would like to mediate (discuss a settlement) the dispute. In most cases, if the case is not settled, the EEOC and TWC will find that they are unable to conclude that discrimination, retaliation, harassment, a hostile work environment, or other illegal conduct has occurred, and issue a “Right to Sue” letter. In rare cases, the EEOC or TWC will find that discrimination, retaliation, harassment, a hostile work environment, or other illegal conduct has occurred, and still issue a “Right to Sue” letter. In either of these cases, the employee will have a limited number of days after receiving a Right to Sue letter to file a lawsuit in the appropriate Court. Specifically, the employee has 60 days to file a lawsuit in the appropriate state Court to pursue the appropriate state law claims (among other potential claims) after TWC issues a Right to Sue letter, and the employee will have 90 days to file a lawsuit in an appropriate federal court to pursue appropriate federal law claims (among other potential claims) after the EEOC issues a Right to Sue letter. Further, to pursue appropriate state law claims in an appropriate state Court, the employee must also be certain to file their lawsuit within 2 years from the date that their Charge of Discrimination was filed. In even rarer cases, the EEOC or TWC will sue on the employee’s behalf.
Practically speaking, the EEOC and TWC process, as well as the process by which the employee applies for unemployment insurance benefits at the TWC, are where the parties will begin to create a record of evidence to be used in support of or against their position at trial. Care should be taken to make sure statements and evidence are presented consistently, otherwise a party’s position may be severely weakened at trial. For this very reason, it is advisable that employees retain an attorney before going through these processes to help guide them through it, and to make sure that the record of evidence is developed appropriately for the lawsuit. Often times, an EEOC or TWC investigator will not completely understand the law governing a particular claim, and an attorney is necessary to keep the investigator on the right track so that the employee’s claim will not be hindered. Further many attorneys will NOT take a case after an EEOC has issued a 90 day Right to Sue Letter for a Charge of Discrimination in which the attorney was not involved because there may not be enough time for the attorney to investigate the case or see what happened at the EEOC or TWC. Further, attorney’s will often use the EEOC/TWC investigation period to negotiate a settlement of an employee’s claim. After the Right to Sue Letter has been issued, this opportunity may have been lost.
Is an Employer Prohibited from Retaliating Against an Employee for Filing a Charge of Discrimination, Retaliation, Harassment or a Hostile Work Environment? What Constitutes Retaliation?**
The law prohibits an employer from taking a “Materially Adverse Action” against an employee in retaliation for engaging in “Protected Activity.” Protected Activity includes but is not limited to: opposing a discriminatory, retaliatory, or harassing practice and/or a hostile work environment; reporting or complaining about a discriminatory, retaliatory, or harassing practice and/or a hostile work environment internally (such as to Human Resources, an officer or manager of the company or in accordance with the company’s internal complaint procedures) or externally (such as filing a Charge of Discrimination with the EEOC and/or TWC); requesting a reasonable accommodation related to pregnancy, religion or a disability; participating, assisting, or testifying in an investigation, proceeding or hearing regarding a discriminatory, retaliatory, or harassing practice and/or a hostile work environment. Some other types of Protected Activity for which retaliation is prohibited can be found on the Homepage of this website. Please see our Retaliation in General page for more information.
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**THE INFORMATION ON THIS PAGE AND ELSEWHERE ON THIS WEBSITE IS ONLY INTENDED TO PROVIDE A BRIEF OVERVIEW OF SOME OF THE LAWS AFFECTING EMPLOYMENT IN THE STATE OF TEXAS AND SOME OF THE REQUIREMENTS OF THOSE LAWS. THIS BRIEF OVERVIEW DOES NOT CONTAIN A FULL DESCRIPTION OF ALL OF THE LAWS AFFECTING EMPLOYMENT IN THE STATE OF TEXAS, NOR DOES IT CONTAIN ALL OF THE REQUIREMENTS TO PURSUE OR DEFEND ANY PARTICULAR TYPE OF EMPLOYMENT LAW CLAIM. THE LAW REGARDING EACH PARTICULAR EMPLOYMENT LAW CLAIM, AND THE INTERPRETATIONS THEREOF, MAY VARY FROM TIME TO TIME, PLACE TO PLACE, JURISDICTION TO JURISDICTION, FROM COURT TO COURT AND FROM EMPLOYER TO EMPLOYER. THE INFORMATION ON THIS PAGE ONLY APPLIED TO PRIVATE EMPLOYERS, NOT PUBLIC AND?OR GOVERNMENT EMPLOYERS FOR WHICH DIFFERENT RULES MAY APPLY. IN ADDITION, THE APPLICATION OF ANY PARTICULAR EMPLOYMENT LAW WILL DEPEND ON THE FACTUAL CIRCUMSTANCES SURROUNDING EACH CASE. EVERY EMPLOYMENT LAW CASE IS FACTUALLY UNIQUE, AND THE APPLICATION OF EACH EMPLOYMENT LAW WILL VARY. ACCORDINGLY, NOTHING WHICH IS WRITTEN ON THIS PAGE IS INTENDED TO CONSTITUTE LEGAL ADVICE WITH REGARD TO ANY PARTICULAR SITUATION. YOU ARE ADVISED TO CONTACT AN ATTORNEY IMMEDIATELY TO DISCUSS THE APPLICATION OF THE EMPLOYMENT LAWS AFFECTING THE STATE OF TEXAS TO YOUR SITUATION. , retaliation, harassment, a hostile work environment,