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Practicing for 20+ 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 or retaliation under certain statutes, including, but not limited to: Title VII (Race, National Origin, Color, Sex, 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, 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 from the date of the alleged discrimination. 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 from the date of the alleged discrimination. 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 alleged discrimination. A lawsuit may still be filed in Federal Court, but not State Court, if the Charge of Discrimination was jointly filed within 300 days of the act of discrimination, but later than 180 days. 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 below), 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 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, or other illegal conduct has occurred, and issue a “Right to Sue” letter. In rare cases, the EEOC or TWC will find that discrimination or other illegal conduct has occurred, and still issue a “Right to Sue” letter. In either of these cases, the employee will have 90 days to file a lawsuit in the appropriate Court. 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.
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