I don't know how long ago it was that you had been through the process but
as far things you've written here, such as Federal judges interpretation of the
law, paying for attorney's fees for an out of court settlement and/or one 3rd to
the lawyer...doesn't jive with current law. Here is a brief explanation
(from a packet I recently received during diversity training) of the Civil
Rights Act of 1991 as it exists today:
"The Civil Acts Rights Act of 1991 made major changes in the Federal laws
against employment discrimination enforced by the EEOC. Enacted in part to
reverse several Supreme Court decisions that limited the rights of person
protected by these laws, the Act also provides additional protections. The Act
authorizes compensatory and punitive damages in cases of intentional
discrimination and provides for obtaining attorney's fees and the possibility of
jury trials. It also directs the EEOC to expand its technical assistance and
outreach."
As far as the burden of the victim to prove the discrimination...this is
not quite the case...at least it isn't any longer. If the state of Federal
agency, upon reviewing the written complaint, decides that it merits and
investigation...they WILL investigate it. The possible discrimination as to be
evident in the complaint...it is up to the victim to describe how the
discrimination occurred and provide details such as dates. If the
victim is not in a protected class, doesn't provide an explanation that may be
illegal discrimination and/or if the complaint isn't filed within the proper
time period, etc., the complaint will not be investigated.
It is important to remember that the agency will investigate the matter if
the written complaint reflects the possibility of illegal
discrimination. During this process, the employer will have to provide a
response to the allegations. If discrimination does not present itself
during the investigation, the agency, not finding strong evidence to support the
complaint of discrimination, will close the case. If the finding is illegal
discrimination, the agency will enter their decision and negotiate a settlement
on behalf of the victim. At this point, the employer, if they dispute/appeal the
decision of the agency will be required to prove that the agencies findings were
inaccurate and/or not covered under existing law.
Personally, a few years ago I filed a housing discrimination complaint
after I was refused a rental. I did this after I was at first, because the
landlord refused to give me an application because I didn't have a 'husband'. I
insisted on the application, completed it in full and mailed it return receipt.
When I followed up, the landlord told me it had been rented...but then I saw
they had reran the ad a few weeks later. When I called to try to rent the
apartment again, they refused to reconsider my application with no good cause.
I filed a housing discrimination complaint with Human Right and
Opportunities. If this were a 2 or 3 family house/building...my complaint
wouldn't have been considered. But because there were 5 units, the landlord
couldn't refuse to rent to me based on familiar status (single mother) if I was
a qualified applicant.
I had very little to go on as far as 'evidence'. Many times 'hard' evidence
won't exist. I had the testimony of my young son (he was questioned by the
agency, with my permission) and the return receipt (I hadn't made a copy of
the application).
First thing the agency did was contact the State Fair Housing department to
conduct testing. Basically the testing entailed having an investigator call the
landlord and posing as a potential applicant with similar circumstances as my
own. The landlord turned down the 'applicant' over the phone based on the info
provided by the caller.
The agency then requested a copy of my application from the landlord. The
landlord, at first did not comply so I then gave the agency the info I listed.
Then the agency contacted all my credit, personal, and landlord references to
find out if the landlord had even attempted to qualify my application...and
the landlord had. At this point the landlord couldn't claim that I hadn't
applied (is what they at first claimed), and then they submitted a copy of my
application.
Once the agency reported the finding, the landlord contacted the State
Attorney General's Office to complain that they were treated unfairly. When that
didn't prove to their satisfaction, they hired an attorney. There was nothing
the attorney could do except to work with me and the agency to negotiate a
monetary settlement -which was an amount recommended by the agency. This amount
was more than sufficient to compensate myself and my son (who, as a family
member was also considered discriminated against) for what we went through, and
was enough to assist with expenses/fees in my continued search for housing and
enough to cover deposits.
The landlord had nothing substantial to dispute/appeal the agencies
findings. In addition to this, the agency also charged the landlord with
breaking another State law related to discrimination - my source of income,
which is a law which most State's do not cover (and is not a Federal Law). The
landlord had tried to claim that they didn't feel that my waitressing job was a
reliable source of income. They got themselves into even more hot water with
that statement. My earnings were regular and had met their income criteria to
afford this apartment.
I am sharing this experience to show these agencies know how to prove
and/or substantiate a complaint. Although I had some evidence, the burden of
'proof' was on the landlord. If this had gone to court, they would have
been the defendant.
Discrimination complaints are taken seriously and are not considered in a
whim. The agency was very compassionate and never once, made me feel like I was
wrongly accusing someone of breaking the law, etc. I wasn't rattled or anything
like that.
For an age discrimination complaint - it is not going to be just a matter
of a conversation that took place during a job interview. The agency is going to
look at every detail in the employment process where discrimination may have
occurred. They are going to ask the employer controlled questions verbally, and
in writing to find any indication of discrimination. The employer, ultimately is
going to have to prove that the employment process was fair to the
applicant.
The agency may also look at past applicants to determine if there's a
pattern of illegal discrimination. You can also see where the employer will be
required to be compliant.
You don't have to have 'hard' physical evidence and even 'subtle'
discrimination may be deemed to be illegal discrimination.
Pam
In a message dated 9/7/2006 6:52:10 P.M. Eastern Daylight Time,
[log in to unmask] writes:
Indigo
is pretty much on the mark about the pursuit of discrimination
suits,
based on my personal experience and those of colleagues. Even
if the
State and EEOC find merit in your case, that is no guarantee of
a positive
resolution. Even if it gets to court, federal judges are
mostly
conservative and don't interpret the law the way we'd like.
Even if
you "win" (and that means usually an out of court settlement
with no
admission of wrongdoing) you will still owe attorney's fees.
And
that win may be years in coming, so a person needs to find a lawyer
to
take the case on a contingency basis unless you have bundles of cash
to
pay for ongoing service--but, of course, you may need that cash
just
to live while you're out of a job and pursuing your case. And the
settlement will be nowhere near what a person is actually due, and that
becomes even less after you give one-third to the lawyer and one-third
to the IRS. In contrast with most general law that people are
familiar
with, the burden of proof is on the victim in discrimination
crimes and
there is no prosecutorial assistance from any governmental
agency. The
police don't come to your aid to arrest the
perpetrator. You're on
your own. Your case will consume hours,
weeks, months of your time,
rehashing things you'd sooner forget,
listening to falsehoods about
yourself without showing emotion, telling
your story over and over
again, teetering on an emotional precipice.
Colleagues will abandon
you and potential employers will be suspicious of
you. If you can
handle all this, if you have documentation and
nerves of steel (and
someone to help support you)--go for it (I did). Be
sure you know what
resolution you want (what you can live with, especially
if you don't
win). Remember that regardless of what the law
says, reality may be,
and usually is, far, far
different.