WHAT TO DO IF THINGS DON’T WORK OUT–
If the union and employer will not accommodate your religious beliefs, you should file a charge with the Equal Employment Opportunity Commission. Remember: to be completely certain that your charge is timely filed, you must file it within 180 days of the date of discrimination. Normally, the “discrimination” will be the union’s or employer’s decision not to accommodate your religious beliefs. But, it might also be some action taken by the employer or union that is contrary to your request for an accommodation.
Let’s look at an example involving religious objection to the payment of union fees. Assume you have written your letter to the union and employer stating your religious beliefs about paying the union fee and have asked for an accommodation of your religious beliefs. If the union writes back saying it will not accommodate your religious beliefs, you should calculate the 180-day period from the date the union turns you down. If the employer and union do not reply, but just start taking union fees from your pay, it is best to file a charge within 180 days of the date the union fees were first deducted from your pay. 11
If you have not already contacted a Foundation lawyer, this would be an excellent time to do so to get help with filing your charge. If you prefer to go forward on your own, what follows is a check list of what you should do to file a charge with the EEOC.
____ Find the nearest EEOC office by visiting the EEOC’s web site at http://www.eeoc.gov/field/index.cfm.
____ If you decide to travel to your nearest EEOC office to fill out a charge, call ahead to see if you need an appointment. The EEOC indicates that filing a charge can take up to two hours. When you arrive, the EEOC may have you fill out an “intake questionnaire.” You can do this in advance by clicking on this link, http://www.eeoc.gov/, and then clicking on the link in the right hand column entitled “File a charge of employment discrimination,” and then clicking on the link “How to File a Charge,” and then under “Online Assessment System” clicking on the link “online assessment tool.” Regardless of whatever else you do, before you leave you must sign an EEOC charge to begin the administrative proceedings.
____ If you live outside the “normal commuting area,” or do not want to visit the local EEOC office, you have some options. If you go on-line and fill out the EEOC “intake questionnaire,” you can then mail or fax the printed copy to the local EEOC office to begin the process of filing a charge. You can also call the local EEOC office and have an EEOC employee take your charge over the telephone. The EEOC will then mail the filled-in charge to you for your verification and signature. You then return via mail the signed charge to the EEOC.12
____ Sometimes employees report that the local EEOC office does not return their calls. If this happens, contact the National Right to Work Foundation and request that you be sent an EEOC charge form. We can send you one by e-mail. You can then mail your charge to the local EEOC office.
____ If you visit or call the EEOC local office, do not take “no” for an answer. Religious discrimination charges constitute a small fraction of the charges filed with the EEOC. As a result, the EEOC intake employees who initially handle the charges are sometimes not very knowledgeable about this area of the law. The EEOC employee may assert that you do not have a claim that is within its jurisdiction. Insist that the EEOC accept the charge. The EEOC acknowledges that you have a right to file a charge even if the EEOC investigator believes the charge is not meritorious.13
____ Often your state will have a state or local agency that deals with religious discrimination. If it does, the law requires that you also file a charge with the state or local agency.14 If you file a charge with the EEOC, it is supposed to file a copy of your charge with the appropriate state or local agency.15
____ Remember, it is a good idea, when mailing the initial charge to the EEOC, to mail it certified, return receipt required.
WHAT SHOULD BE IN YOUR CHARGE–
Filling out the charge form is quite easy. Whether you or an EEOC employee fills out your charge, what it says is important. First, you must be careful how you describe your religious beliefs. Make sure the description is accurate and consistent with your religious accommodation request notice.
Second, be certain to state in your charge all of the ways in which the union (and your employer) are violating your religious beliefs.
Third, be certain that your charge lists the name and address for each party you think owes you an accommodation, but did not accommodate you. For example, if you have religious objections to joining or financially supporting a labor union, be sure the name and address of every level of the union that claims part of your union fee is included in your charge. Unless you have religious convictions that prevent you from filing a charge against your employer, you should also file a charge against your employer. If you fail to include the name and address of some party that you believes owes you an accommodation, you may not be able, later on, to enforce your legal rights against that party.
Last, the charge will ask you to state the date of the most recent discrimination. That date must fall within the statute of limitations discussed above; otherwise you have a charge that is untimely on its face.
WHAT TO EXPECT BEFORE THE EEOC–
Once you have filed a charge, the EEOC notifies the opposing parties that a charge has been filed, and begins to investigate. The EEOC does not operate like a court. Its investigation does not involve a formal hearing or a trial.16 Instead, during the investigation the assigned EEOC investigator talks to the parties, accepts their documents and position statements, and tries to figure out what has happened. (Be sure to cooperate.) The EEOC will ask if you would like to have a mediator attempt to resolve your charge. It would be wise to discuss mediation with a Foundation attorney.
The EEOC investigation can end in one of several ways. Let’s take a look at each of these.
Filing an EEOC charge causes the EEOC, as mentioned above, to contact the party against whom you have filed. Just knowing that you are serious about pursuing your rights may cause the other party to decide to settle the case. If you (or the EEOC or a mediator) can work out a settlement so that your beliefs are accommodated, that is the easiest and quickest resolution.
If the matter is not settled, the EEOC will issue a “determination letter” based on its investigation. That letter states whether or not the EEOC thinks the law has been violated. If it agrees with you that your religious beliefs should have been accommodated, and that your employer or union violated the law, it will issue a “cause” determination letter. If it does not agree that your rights have been violated, it will issue a “no cause” determination letter.
The amount of time the EEOC takes to investigate a charge varies greatly. Although the EEOC should eventually decide who it thinks is right and who it thinks is wrong, you may not want to wait that long. If your charge has been pending for 180 days before the EEOC, you have the right to request a “right to sue” letter from the EEOC. The EEOC will issue this letter to you upon request. After the right to sue letter is issued, you have 90 days in which to file suit in court. 17 If the EEOC issues a “no cause” determination letter, you also have the opportunity to file suit in court within 90 days.18 You cannot go into court on your own while your case is pending before the EEOC. Instead, you must first obtain a “right to sue” letter from the EEOC.
If the EEOC finds in your favor, and issues a “cause” determination letter, it will formally enter into the “conciliation” stage of processing your charge. Conciliation means the EEOC tells the union and your employer that they should accommodate your religious beliefs. The EEOC has now switched roles from being an “investigator” of the facts, to being your advocate. Now that it is formally “on your side,” the Commission tries to work out an accommodation of your religious beliefs. At this point, the possibility again exists that your case will be settled. However, if it is not settled, and you want to continue to pursue your rights, the matter will have to go to court.
The EEOC has no power of its own to enforce its decision. If it agrees with you that your rights have been violated, but fails during conciliation to work out an accommodation of your religious beliefs, the EEOC has one of two options. First (and best from your point of view), the EEOC can go to court and file suit in its own name against the parties that you named in your EEOC charge. (That is one reason it is important to have all of the correct parties named in your charge(s).) If the EEOC files suit, you will go before a judge who will decide whether you are entitled to an accommodation of your religious beliefs.
The EEOC will provide its lawyers to argue its findings on your behalf in court. The EEOC does not charge for this help. You also have the right to have your own lawyer request that the court allow you to intervene in the litigation. The reason to consider hiring your own lawyer and intervening, is because the EEOC is really arguing its institutional point of view through your case. Your own lawyer will be concerned only about your point of view.
Even though the EEOC agrees that your rights have been violated, the second option open to it is to do nothing. It is not required to go to court to enforce its decision in your favor. If the EEOC decides to do nothing further, it will send you a letter telling you that you have 90 days to file suit to enforce your rights on your own.
The National Right to Work Legal Defense and Education Foundation provides attorneys, at no charge, to employees who have religious objections to joining or financially supporting a labor union. If that is your situation, you can request help from the Foundation. Your request will be carefully considered. The Foundation’s goal is to help as many sincere religious objectors as possible. However, the Foundation receives many requests for assistance and is unable to provide formal help to every employee who requests it. Although this guide tells you how you can file EEOC charges on your own, if you want help from a Foundation attorney, it is best to ask for help as early as possible, even at the point when you are considering requesting a religious accommodation.
If you decide to go to court and need an attorney, but do not know where to find one, the EEOC has established “panels of attorneys who have indicated their willingness to represent charging parties and to cooperate with the [EEOC].”19 You can ask the EEOC for an attorney referral. You and your potential attorney will be interested to know that Title VII has a “fee-shifting” provision. This means that if you win, the court should order the other side to pay your attorney’s fees.20
11. It is beyond the scope of this guide to discuss all of the legal exceptions and theories dealing with the statute of limitations. If you are beyond the 180 day period, but file your charge within 300 days of the date of discrimination, chances are very good your charge is still timely. If you are beyond the 300 days, you need to discuss the limitations period with the EEOC or an attorney. For example, a “continuing violation” “extends” the period for filing a charge.
12. EEOC Compliance Manual §§ 1.5 & 2.3.
13. EEOC Compliance Manual § 2 – I and n. 5.
14. 42 U.S.C. § 2000e-5(c). If the state agency assumes jurisdiction, after 60 days you can ask the EEOC to take over the investigation. Foundation attorneys have found that it is best to get your case in the hands of the EEOC as soon as possible.
15. 29 C.F.R. § 1601.13(a)(4)(i).
16. An EEOC investigator has the authority to bring the parties and their lawyers together for a face-to-face meeting, which is the closest the EEOC gets to a regular trial under Title VII. The EEOC has different procedures for federal employees, which include the possibility of a trial.
17. 42 U.S.C. § 2000e-5(f)(1). If a state or local anti-discrimination agency is handling your charge instead of the EEOC, you need to ask that agency about the timing of your opportunity to go into court.
18. Generally the EEOC will tell you in advance if it disagrees with you and is going to issue a “no cause” letter. If that happens, and you have decided that you are going to pursue the matter in court, you should consider asking the EEOC to issue a “right to sue” letter, instead. This is because filing suit based upon a “right to sue” letter gives the court no idea about the thinking of the EEOC, while the issuance of a “no cause” letter tells the court that the EEOC believed your case had no merit.
19. EEOC Compliance Manual § 81.1.
20. 42 U.S.C. § 2000e-5(k). Under some circumstances, if you lose, you can be forced to pay your opponent’s attorneys’ fees.