I was sexually harassed and retaliated against at work. The company ignored my demand letter and right to sue notice- they sent me an arbitration agreement that I signed in my new hire packet. Can eeoc represent me because I don't know if a lawyer will take my case?
You have to file a charge of discrimination with the EEOC or California Department of Fair Employment and Housing before you have a claim to be arbitrated (at least arguably) so go ahead and file. Do not request a right-to-sue letter from the agency; request the investigation. After you find an attorney, he or she will coordinate the timing of the right-to-sue letter with the work the attorney is doing.
Note you could still file in court to dispute the validity of the arbitration agreement, and if you win, you will not be able to pursue your harassment and retaliation case unless you first exhaust the administrative (EEOC or DFEH) requirements.
If you were to receive a right-to-sue letter from either the EEOC or DFEH and file a case in court, the employer would make a motion to have the case sent to arbitration
Do not expect the EEOC or DFEH to represent you. It is very, very rare that either agency takes a case to litigation, due in part to a lack of resources, both financial and personnel.
Please look at my guide to unlawful discrimination: http://www.avvo.com/pages/show?category_id=6&pe... which should help you understand lawful and unlawful discrimination, how to enforce your rights, and time limits. It discusses the differences between the EEOC/federal law and DFEH/state law; attorneys in California agree that pursuing claims with the DFEH and under state law is much better for the employee.
In nearly every case, you need your own attorney for employment litigation, mediation or settlement. Regardless of whether you are in your state agency or the federal Equal Employment Opportunity Commission (EEOC) www.eeoc.gov, the agency is not your representative. A mediator, settlement officer, investigator or other representative for the agency has one client – the government. Some agency representatives are great and will do their best to protect you rights even though they are not your advocate. Some agency representatives stink and care more about closing the case than they do about the person who filed the charge.
Because the agency has a particular mission and because it is not representing you, if it turns out your interests and those of the agency clash, the agency representative is required to make sure the agency’s goals are carried out, not yours.
Also, the agency will only consider issues relevant to laws the agency enforces, such as discrimination laws. It will not consider such things as employer liability under wage and hour laws, mutuality in a settlement agreement, circumstances under which you might have to return the money, the language of a settlement agreement (which could have all kinds of "gotchas" that the agency doesn't notice or doesn't deal with), and more.
In addition, agency representatives most often handle low-value cases because that is what ends up in their offices. They handle high-value cases far less frequently, and even less frequently handle high-value cases where the charging party doesn’t have an attorney. If you show up without an attorney, the agency rep may interpret your case as low-value, even if it isn’t. Of course the agency representative may learn the value of your case during the process, but why start off with such a large obstacle?
Similarly, without an attorney, the employer probably won't take you or your case seriously and may be able to take advantage of you. No one is watching your back if you don't have your own attorney.
Consider that the employer most likely has an attorney or has consulted with its attorney. Even if the employer doesn't have an attorney, it usually has human resources personnel who have been down this route before and know far better than you do how to use the system to its own advantage.
It is nearly always the case that a charging party will do better overall with an attorney, even taking into consideration the attorney's fees portion of the recovery.
Ms. Spencer's response was great, of course. I just wanted to add that just because you signed an arbitration agreement, that does not mean you will necessarily have to arbitrate the issue. In the employment context, and specifically where sexual harassment and retaliation are concerned, an arbitration agreement can be determined unenforceable for many reasons. I am not saying it is a guarantee, but there are some very good reasons for setting aside employer arbitration agreements, and if this particular employer is not represented by well-versed counsel, or if the agreement is from several years ago, there may well be ways to avoid the consequences of the arbitration clause.
Good luck to you.
An employee cannot contract out of, by singing an arbitration agreement, an agency (EEOC) investigation. Since you already secured a right to sue letter, there is statute of limitations to keep in mind.
You should contact an employment attorney to discuss your options, sooner rather then later.
Best of luck,
Oleg Albert, Esq.
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