See Administrative Agency Chart for more info on specific agencies
- United States Equal Employment Opportunity Commission (EEOC);
- Illinois Department of Human Rights (IDHR);
- Cook County Commission on Human Relations (CCCHR);
- City of Chicago Commission on Human Relations (CCHR);
- United States Department of Housing and Urban Development (HUD);
- United States Department of Education (DOE);
- United States Occupational Safety and Health Administration (OSHA).
A charge of discrimination, sexual/racial harassment and retaliation is typically filed by an employee against his employer. Employees are referred to as Complainants and employers as Respondents at the various administrative agencies. Each agency accepts particular kinds of charges with specific investigation steps toward possible resolution or conclusion. The nature of charges accepted as well as the investigation process often differ from agency to agency.
Overall however, the process generally follows this sequence:
- Filing of a discrimination, harassment or retaliation charge by an employee-complainant;
- Service of the charge on the respondent-employer with a deadline for a response;
- Agency’s mediation conference with both sides present;
- Submission by the respondent-employer of a written statement describing its side of the story;
- Agency request for specific information from the employer about similarly-situated employees as well as disciplinary records, employment records and such;
- Agency’s fact-finding conference with both sides present;
- Agency’s written summary of determination whether or not a violation is established;
- Agency conciliation conference with the parties to attempt resolution if violation is established;
- Litigation if the case is not resolved, conciliated or dismissed by agency in federal court, Illinois state court, or the administrative agency where the complaint was filed.
The process usually starts with a complainant-employee completing a discrimination questionnaire with the administrative agency which provides significant detail about the employee’s allegations. The agency then summarizes it into a short, typed charge of discrimination on grounds such as race, national origin, color, sex, age, disability, retaliation or other form of discrimination. The charge is signed by the employee-complainant. Some agencies accept charges within 180 days of the claimed violation. EEOC however permits charges to be filed within 300 days of the alleged violation.
It is important to note that the size of the employer often determines which agency and laws that apply. In general, employers with less than 15 employees are protected from certain kinds of charges and exempt from certain laws also. Some other laws only apply to employers with 25 or more employees. As such, small employers should be careful to first determine whether they are subject to the law or agency where the charge is filed. If not, the employer may not need to response to the charge except to prove its total number of employees with payroll records. The scope of the charge is important because employee lawsuits are limited to the issues identified in the charge.
Employers should also be aware that they are strictly prohibited from retaliating against an employee who files a charge. Employees who believe that they are being retaliated against may file a new charge of retaliation which could become more problematic for the employer than the original charge of discrimination. More on Sexual Harassment Retaliation...
Within a few days of filing a charge, the employer is served with a copy of the charge by certified or registered mail. The employer is given a deadline to submit a written response to each allegation on the charge. The employer is also expected to submit a position statement summarizing its defenses and side of the story in its own words. The position statement typically cites some past case law that should assist the investigator in determining whether there is a violation of the law.
Some agencies also send a questionnaire along with a request for documents. The questionnaire typically asks for information about employment policies, work performance of other employees in the same position to determine whether the employer’s treatment of the Complainant was in line with the treatment of others not in the same protected category. Employers are also asked to provide documents such as personnel files, time records, discipline records to assist the investigator determine whether the complaining employee was treated differently from the norm.
An employer’s response to the charge and submissions to the agencies play a vital role in the determination whether the complaining employee has a viable claim. If the documentation submitted establishes that the employer treated the complainant according to its policies and in line with other employees not in the protected class, the investigator is more likely to conclude that no violation occurred. If on the other hand, the submissions are incomplete, sloppy, inaccurate or poorly supported, a finding of a violation is more likely.
Before submitting a response to a charge, position statement or response to a questionnaire, an employer should be careful to conduct a thorough internal investigation of the facts of the charge or complaint so that the responses are thorough and entirely accurate. Inaccurate, unsupported or poorly documented statements can harm an employer’s case significantly during the investigation and later during litigation as they are portrayed as false and misleading. More on Internal Harassment Investigations... and Investigating Sexual Harassment Complaints...
The administrative agencies all make an effort to resolve or settle the case. If a charge is settled, it is no longer necessary to continue or complete the investigation. A mediation conference is a face-to-face meeting between the employer and the employee in an attempt to resolve the case with the assistance of an agency investigator or mediator. Some agencies pursue non-binding mediation as the first step before investigation. Others defer or skip mediation entirely. Both parties must agree to mediation before a mediation conference is set up. More on Mediation Conferences...
The fact-finding conference is different. It focuses on gathering information from the employer and employee to assist the investigator in determining whether a violation is likely to be established. Mediations focus on possible out-of court settlement or resolution. A fact-finding conference is attended by the Complainant as well as the employer. Some agencies permit the parties to bring witnesses. It is thus important to discuss with the investigator whether witnesses are permitted. Parties may always submit written witness statements and affidavits whether or not witness attendance is permitted.
During the fact-finding conference, the employee states his/her own side of the story and the employer responds with his/her own side of the story. The parties also answer questions posed by the investigator to the hearing of all. Some agencies permit questions from the employer to the employee and vice versa. Others do not. There is no judge or jury at these conference which are also not recorded or under oath. As such, parties have to rely on their notes to remember statements made at the conferences. Read more about Fact-finding Conferences
After the collection of papers, witness interviews, and fact-finding conference, the investigator prepares a written summary of the agency’s findings and conclusions. The summary recites the facts gathered from the documents, fact-finding conference, witness interviews, witness statements and affidavits. It then states whether a violation has been established and the facts supporting that conclusion. If a violation appears to exist, the case is advanced to an administrative law judge at the respective agency where the charge was filed, the U.S. district court (federal court) or Illinois state court, starting in 2009. Where the investigator concludes that a violation does not exist, the employee complainant is typically still able to file a lawsuit in federal court on his own by receiving a right-to-sue letter from the EEOC or filing a lawsuit in an Illinois State court.
Administrative agency investigators are not permitted to make credibility determinations. Cases where the investigator is required to determine who is telling the truth between the employer and employee in order to reach a conclusion are typically not dismissed but forwarded to a judge to make the required credibility determinations. This obtains mostly in racial or sexual harassment cases as well as retaliation cases where an employee claims harassment and the employment denies it and there is no way to reconcile the stories without a credibility determination. In retaliation cases, the employee typically claims that sh/she complained to the employer and was punished thereafter. If the employer denies ever receiving a complaint, the investigator typically has to move the case forward to a judge to make credibility determination. Such cases are more likely to end up in litigation than others.
At the conclusion of the investigation and before a lawsuit is filed, the administrative agency makes a last attempt to resolve the case short of a lawsuit. The conciliation conference is much like the mediation conference. Sometimes, the conciliation is conducted by phone and letters instead of in-person. If conciliation efforts fail, the parties then proceed with a lawsuit in court or at an administrative agency in front of an Administrative Law Judge (ALJ).
Discrimination Complaint Filing and Litigation
After the investigation and after all attempts to settle the case fail, the employee typically brings a lawsuit to litigate the case. Employment discrimination, sexual harassment and retaliation lawsuits are typically filed in district court (federal court) or Illinois state courts. Alternatively, cases are heard by administrative law judges at the Illinois Human Rights Commission for charges filed with the Illinois Department of Human Rights (IDHR).
The following administrative agencies have established a process of litigation and have administrative law judges that hear charges that are filed with its agencies: Cook County Commission on Human Relations (CCCHR); and City of Chicago Commission on Human Relations (CCHR).