For many South Carolina employees, navigating the legal system–including the EEOC process–can be an intimidating prospect. Often having an attorney representing your interests and explaining the EEOC process to you can be extremely helpful. This post will provide a helpful outline of what to expect once you decide to pursue a discrimination or harassment claim against your employer in South Carolina.
For most employment discrimination, harassment, or retaliation claims in South Carolina, the employee must first file a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”). This charge must be filed first and the case investigated before the lawsuit can ever be filed. Most of the counties in South Carolina fall under the jurisdiction of the Greenville-based EEOC office. South Carolina also has a state agency that operates a state-level counterpart to the federal EEOC. This state agency is called the South Carolina Human Affairs Commission (“SCHAC”), and an employee can choose to file a discrimination or harassment claim with one or the other of these agencies. The Charge must be filed within 300 days of the date of harassment, discrimination, or retaliation. This 300 day period is your statute of limitations period, so if you fail to file the Charge within those 300 days, then your claim, no matter how meritorious, is barred from proceeding further.
The EEOC and SCHAC process can be navigated with or without an attorney. If I have a consult with an employee and decide to take the case, I will draft and file the Charge myself. However, sometimes the employee has already met with the EEOC or SCHAC prior to contacting me and will have already filed a Charge with their help. When the EEOC or SCHAC prepares the Charge, the investigator will first gather information from the employee about the facts of the claim. The investigator may ask for documents that would support the allegations. Once the Charge is drafted, by either the investigator or the attorney, the employee signs the Charge under oath and it is filed with the agency. The EEOC has up to six months to investigate the Charge.
From there, the EEOC or SCHAC will decide whether the Charge would be better served by a possible mediation (a formal settlement conference) or by simply sending the Charge over to the investigative unit for further investigation and follow up. If the both the employee and the company decide that they want to attempt a mediation, then the EEOC will provide a mediator and a time for the mediation to take place. I’ve written previously about the EEOC mediation process, and you can read more about that part of the EEOC process here. If the mediation is successful, then the Charge is resolved and the employee moves on with life, placing the company firmly in the rearview mirror. If the mediation does not resolve the case, then the Charge is sent back for further investigation.
At the investigation stage, the investigator will ask the company to provide a formal written response to the Charge. This written response, called a “Position Statement,” will be the company’s proffered explanation for why the employee was not discriminated against, harassed, or retaliated against. The employee is typically provided a copy of the Position Statement and exhibits, and the employee can provide a rebuttal if they want. The investigator may also want to schedule a more in-depth interview with the employee and the employee’s attorney (this is normally only if the attorney drafted and the filed the Charge). At that point, the investigator may seek to schedule a site visit to the workplace, interview employees and managers, and ask for more documents from the company.
Once the fact gathering is complete, the EEOC will issue a determination of whether it found cause or no cause to support the allegations. Given the high volume of charges that the EEOC and SCHAC investigate each year, most Charges end up being dismissed without a finding of cause. This finding does not meet that the claim has no merit, but rather it merely indicates that the EEOC will not be pursuing the claim further. The EEOC or SCHAC will close the file, end the EEOC process, and send the employee a Notice of Right to Sue, which gives the employee a short period of time (90 days) to file a lawsuit in state or federal court.
I generally recommend that an employee have a South Carolina employment lawyer review the facts of the case early on. An attorney can help draft the Charge, assist in early resolution of the claim if possible, guide the employee throughout the EEOC process itself, and ultimately provide an opinion as to the relative strength and weaknesses of the case. Some employees wait until the EEOC has dismissed the case and the 90 day period is already ticking or is close to expiring before contacting me, but I don’t recommend that approach. Trying to evaluate an entire case and possibly get a lawsuit filed in such a short period of time is difficult and can cause problems later. Best practice is to speak with an employment lawyer as soon as possible so that you aren’t racing against the clock.
If you have any questions about whether you have a viable claim for employment discrimination, harassment, or retaliation, then contact our office to schedule a consult with our South Carolina employment lawyers.