Talk to many IT professionals over 40 and they'll tell you age discrimination is rampant in the field. They'll share stories of being passed up for jobs because they're too old and about the subtle and not-so-subtle ways hiring managers and HR personnel ask them about their age (e.g., Do you have any kids? When did you graduate from high school?).
In order to avoid age discrimination, older IT workers have confessed to dying their gray hair (it's not just women who do this) and leaving the dates they graduated from college off of their resumes, along with work experiences that date back to the 80s. When they speak about the effect of their age on their IT careers, an air of powerlessness overcomes these otherwise assertive IT professionals. They don't think there's any way to fight age discrimination.
In fact, IT workers who believe they're being or have been discriminated against—whether on the basis of their age, sex, race, national origin, religion or disability—can file a discrimination charge with the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing anti-discrimination laws.
Filing a discrimination charge with the EEOC is surprisingly easy, and it doesn't require putting together a bullet-proof legal case either. To get started, all you basically need to provide to the EEOC is your name, address and phone number; the name, and phone number of the employer you believe discriminated against you; a brief description of the events that you believe were discriminatory; and an explanation of why you think you were discriminated against. The EEOC will take it from there.
Filing a discrimination charge with the EEOC can also be highly effective and net positive results. In 2010, the EEOC processed nearly 100,000 discrimination and retaliation charges, filed 271 lawsuits on behalf of victims, resolved 315 suits from previous years in federal district courts, and won $85.1 million in benefits for victims of discrimination, according to EEOC data. Ralph DeVito, an IT worker who lives in New Jersey, filed an age discrimination charge against outsourcing giant Infosys with the EEOC, and the commission found that DeVito was in fact discriminated against. DeVito subsequently filed a lawsuit against Infosys in February.
Nicholas Inzeo, director of the EEOC Office of Field Programs, says individuals who come forward with legitimate discrimination claims stand a lot to gain. "If someone files a charge under the Age Discrimination in Employment Act [ADEA], the case gets litigated and the individual wins the case, the court can put the person back in the position they would have been in had there been no discrimination. So any term or condition of employment, or any compensation or benefits the individual would have received absent of discrimination could be recovered," explains Inzeo. "Under the ADEA, there's a provision that if the employer took the actions knowing they were discriminatory, the court can double the amount given to the individual."
Inzeo adds that individuals who believe they've been discriminated against don't have to go to court to recover damages. "There have been a number of instances where, through mediation, people have recovered relatively large amounts of money," he says.
Another reason why filing discrimination charges with the EEOC is so important is because victims of alleged employment discrimination can't sue their employers without first filing a charge with the EEOC. Even if the EEOC doesn't find a violation of any federal anti-discrimination laws after investigating the victim's claim, the victim can still file a lawsuit on his or her own.
Here CIO.com demystifies the process of filing a discrimination charge with the EEOC and explains what the EEOC does with claims once the agency receives them.
How to File a Discrimination Charge with the EEOC
One hangup that prevents some people from filing discrimination claims with the EEOC is not knowing whether the agency can actually help them, says Inzeo. The EEOC has a free online assessment tool you can use to determine whether the EEOC is the right organization for you to contact.
The assessment asks basic, multiple-choice questions about your complaint, such as whether your complaint pertains to a job you applied for, your current job or a former job; whether the organization you're complaining about is a public or private sector organization and the number of people it employs; as well as the reasons why you believe you were discriminated against. Note that using the assessment tool does not constitute filing a claim.
When you're ready to file a discrimination charge, you can either file in person, at any one of the EEOC's 53 offices, or by mail. If you plan to file in person, you may need to make an appointment with the EEOC field office where you wish to file (usually the office closest to you), though some offices allow walk-ins. Check the EEOC's list of field offices for its walk-in or appointment policies.
At your local EEOC office, you'll be asked to fill out a four-page intake form. You can download the intake form from the EEOC's website after running through the assessment (which doesn't take long) and fill out the form in advance.
The questionnaire asks for your name, contact information, sex, race, date of birth, country of origin; the name, address and phone number for an alternate contact; and the name of, contact information for and number of people employed by the organization that you believe discriminated against you.
You'll also need to provide information about your position with the employer on the intake form, such as the date you were hired; your job title when you were hired and when you were discriminated against; your pay rates; the date you quit or were terminated (if applicable); and the name and title of your boss. If you faced discrimination as a job seeker, you'll need to note the date you applied for the job and the title of the position for which you applied.
The rest of the form asks you to select the type of discrimination you faced, to explain the discriminatory incidents that occurred, to describe how other people in the same or similar situations as you were treated, and for the names of any individuals who witnessed the discriminatory incidents.
Don't forget to bring any documentation or information related to your claim with you when you visit the field office. For example, if you were fired for poor performance, bring your termination letter, performance reviews, the names of people who know what happened to you and their contact information. If you think you were denied a job because of your age, you could bring any correspondence you exchanged with the employer, a copy of your job application and the job ad, and any information you have about the company's hiring process, such as an employee handbook.
The EEOC notes that you can bring anyone you want to your meeting, including an attorney, though you don't have to hire a lawyer to file a charge. Inzeo adds that these meetings usually last an hour or two.
To file a claim by mail, you can either send your local EEOC your intake questionnaire or a letter with the following information:
- Your name, address and phone number.
- The name, address and phone number of the employer where the alleged discrimination took place.
- The number of employees at the company.
- A short description of the events that you believe were discriminatory, such as being fired, demoted, harassed, passed up for a promotion or denied a job.
- The date or dates the events took place.
- An explanation of why you believe you were discriminated against (e.g., because of your race, sex, age, health condition, etc.)
- Your signature. You must sign the letter. If you don't, the EEOC can't investigate your claim.
If your local EEOC office needs more information, they will contact you by phone or mail within 30 days.
Deadline for Filing a Discrimination Charge
You have 180 days from the time the alleged discriminatory incident occurred to file a discrimination charge with the EEOC, but it's best to file as soon as possible. The deadline for filing a charge is extended to 300 days if a state or local agency enforces a law that prohibits employment discrimination on the same basis as the claim being filed.
The deadline for filing age discrimination claims is only extended to 300 days if a state law (in the state where the alleged discrimination took place) prohibits age discrimination in employment and a state agency or authority enforces that law. If there's no state agency or authority enforcing a state anti-age discrimination law, the deadline for filing an age-related discrimination claim will remain 180 days from the time the discriminatory incident took place.
Include holidays and weekends when you're calculating your deadline for filing an EEOC charge. If the 180- or 300-day deadline falls on a weekend or holiday, you have until the next business day to file your claim. If you aren't sure how much time you have left, contact your local field office.
You can file separate charges for each discriminatory event if you believe you experienced more than one. For example, if you were demoted, then fired and you believe your employer made those decisions because of your age, you can file separate charges for both incidents. Your deadline for filing those claims will be either 180 or 300 days from the time each incident occurred depending on whether state laws pertaining to age discrimination exist and are enforced.
What the EEOC Does with Your Discrimination Charge
Step 1: Inform Your Employer
Within 10 days of filing your charge, the EEOC will send a notice and a copy of your discrimination charge to your employer, which means your name and information about your allegations will be disclosed to them. The EEOC is required by law to give the charge you filed to the employer so that the employer has the opportunity to respond to your claims. The EEOC will not disclose your charge to the public while an investigation is underway.
If you wish to file an anonymous claim because you're concerned that your employer might retaliate against you, your only option is to have an individual or organization you trust file a claim on your behalf. The EEOC says on its website that it doesn't usually tell the employer who the charge was filed on behalf of, though it does tell the employer the name of the individual or organization who filed it.
Be aware that even if you have someone file a discrimination charge on your behalf, the EEOC notes that keeping your identity a secret during the investigation may be difficult, even if your name is never released, because of the circumstances surrounding your charge.
This lack of anonymity prevents a number of people from filing discrimination charges, says Inzeo. But that fear of retaliation shouldn't prevent you from filing a discrimination charge because it's illegal for an employer to retaliate against a job seeker or current or former employee who files a discrimination charge. An employer cannot, for example, fire, demote or harass you for filing a discrimination charge.
"In talking to people [who come to our field office with claims and who are concerned about their employer knowing they filed the claim], we emphasize that it's against the law for employers to retaliate against someone for filing a charge," says Inzeo. "When we serve an employer with a copy of the charge that was filed, we remind them that retaliation violates the laws that we enforce."
While the law doesn't always stop employers from acting out, victims of retaliation have recourse. If you believe your employer has retaliated against you, contact your EEOC investigator immediately. The investigator will talk with you about your situation, and if appropriate, add a retaliation claim to your discrimination charge. The EEOC will then notify the employer that a retaliation claim has been added to your charge, and the agency will investigate your retaliation claim as well.
Step 2: Mediation
The EEOC may ask you and your employer if you're interested in trying to resolve the charge through a free, confidential mediation process. Mediation is not mandatory. If either party declines to pursue mediation, your charge will be forwarded immediately to an EEOC investigator.
But if you and your employer agree to mediation, a trained mediator (usually an EEOC employee, sometimes a contractor or volunteer) will try to help you and your employer reach a voluntary settlement. The mediator does not issue a decision as to which party is right or wrong. Rather, he or she tries to help both parties resolve their disagreement. Inzeo says settlements can be monetary, or they can address the victim's standing in the company—in other words, they can get the job or promotion they were initially denied because of discrimination.
The time mediation takes depends on how complicated your case is, though a single mediation session usually lasts between a half and a full work day. Inzeo says most mediation efforts are settled in one session. You may bring a lawyer with you to the mediation session, but the mediator will proscribe the attorney's role.
If mediation doesn't solve your problem, the EEOC will investigate your discrimination charge. For more information on the mediation process, see the EEOC's Mediation Program.
Step 3: Investigation
The EEOC's process for investigating claims varies according to the facts of the case and the kind of information the agency needs to gather. EEOC investigators may need to visit the employer to conduct interviews and gather documentation, or they may interview witnesses over the phone and request documents by mail. If an employer refuses to cooperate with an EEOC investigation, the agency can issue a subpoena to obtain documents, testimony or to enter offices.
Be aware that investigations can take several months. In 2004, for example, it took the EEOC nearly six months on average to investigate charges. The exact duration of an investigation depends largely upon the amount of information the EEOC needs to gather and analyze. Charges are often settled faster (usually in less than three months) through mediation, according to the EEOC.
If a discrimination charge appears to have little chance of success, the agency may dismiss the charge without conducting an investigation or offering mediation. Inzeo says the EEOC determines a charge's chance of success based on "certain models of proof that are required for different types of claims," and based on the many existing legal precedents that define employment discrimination. He adds that approximately 12 to 14 percent of charges are dismissed without being investigated or mediated. The EEOC may also dismiss your charge if it does not have jurisdiction over your claim or if your charge is no longer timely. The EEOC will notify you in the event it dismisses your charge.
If the EEOC finds that your employer did in fact violate federal anti-discrimination laws, the agency will try to reach a voluntary settlement with the employer. If the EEOC can't reach a settlement, your case will be transferred to the EEOC's legal staff, who will decide whether or not the agency should file a lawsuit. Inzeo says the EEOC looks at a variety of factors when determining whether or not to take on a suit, including the number of individuals who've been impacted by the discrimination, the location of the case, the discrimination laws it addresses, and whether the case allows the EEOC to help shape future anti-discrimination laws.
If the EEOC decides not to file a lawsuit, it will give you a "Notice of Right to Sue," which grants you permission to file a lawsuit against the employer. If the EEOC doesn't find a violation of the law after investigating your charge, you will still get a Right to Sue notice.
"The EEOC's mission is to eradicate discrimination. To do that, people have to come forward and tell us about discrimination," says Inzeo. "If people come forward and we get the opportunity to investigate and then resolve matters between the parties—or if necessary—litigate, then we can have a positive impact not only on the individual and the workplace where the individual works but in all of America's workplaces because people will understand their rights and employers will understand their obligations not to discriminate."
Meridith Levinson covers Careers, Project Management and Outsourcing for CIO.com. Follow Meridith on Twitter @meridith. Follow everything from CIO.com on Twitter @CIOonline and on Facebook. Email Meridith at email@example.com