If you believe discrimination or retaliation played a role in your layoff, you may have the right to file a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission.
People often call this an “EEOC complaint,” but for most private-sector and state or local government workers, the formal document is called a Charge of Discrimination.
Federal employees and applicants use a different EEO complaint process. That process is explained separately below because the deadlines and steps are not the same.
Deadline warning
You may have as little as 180 calendar days to file an EEOC charge. Federal employees and applicants generally have only 45 days to contact their agency’s EEO counselor.
Do not wait for a severance negotiation, internal complaint, union grievance, arbitration, or HR investigation to finish. Those processes generally do not stop the EEOC filing clock.
What the EEOC Does
The Equal Employment Opportunity Commission enforces federal laws prohibiting employment discrimination based on:
- Race
- Color
- Religion
- Sex, including pregnancy, sexual orientation, and gender identity
- National origin
- Age, for workers age 40 or older
- Disability
- Genetic information
- Retaliation for reporting discrimination, requesting certain legally protected accommodations, filing a charge, or participating in a discrimination complaint or investigation
The laws apply differently depending on the type of claim and the employer’s size. Contacting the EEOC can help you determine whether your employer and situation are covered.
The EEOC does not handle every unfair firing, broken promise, wage dispute, WARN Act violation, bad manager, or generally rotten layoff.
Something can be unfair, dishonest, or spectacularly shitty without violating a law enforced by the EEOC.
The question is whether discrimination based on a legally protected characteristic, or retaliation for protected conduct, affected the employer’s decision.
When a Layoff May Raise an EEOC Issue
A company is allowed to eliminate positions, reduce staffing, reorganize departments, or cut costs. It is not allowed to use a layoff as cover for unlawful discrimination or retaliation.
Warning signs may include:
- Older workers were disproportionately selected while substantially younger workers doing similar work were retained.
- A worker was selected shortly after requesting a disability or pregnancy accommodation.
- Employees of one race, sex, national origin, or religion were treated differently during the reduction.
- Someone was laid off after reporting discrimination or participating in another employee’s complaint.
- A worker was selected shortly after taking an action protected by federal discrimination law.
- The employer’s explanation conflicts with the worker’s performance records or the criteria supposedly used to select employees.
- Decision-makers made statements connecting the layoff to age, disability, pregnancy, race, sex, religion, national origin, or another protected characteristic.
- The employer claimed a position was eliminated but soon advertised or filled a substantially similar position.
- The selection process appears inconsistent, undocumented, or different from what employees were told.
Being part of a protected group does not automatically mean your layoff was discriminatory. The issue is whether your protected characteristic or protected conduct affected the decision.
Suspicious timing alone may not prove discrimination, either. It can still matter when combined with conflicting explanations, unequal treatment, relevant statements, or other evidence.
The Filing Deadline
For most private-sector and state or local government workers, an EEOC charge generally must be filed within:
- 180 calendar days from the alleged discrimination; or
- 300 calendar days if a qualifying state or local agency enforces a law prohibiting discrimination on the same basis.
The rule for age discrimination is slightly different. The deadline extends to 300 days only if a state law prohibits age discrimination and a state agency or authority enforces that law. A local age-discrimination law by itself does not extend the federal deadline.
Review the EEOC’s filing-deadline rules.
Do not assume you automatically have 300 days. Which deadline applies can depend on where the discrimination happened, the type of claim, and the laws enforced by the appropriate state or local agency.
Until you have confirmed otherwise, act as though the shortest possible deadline applies.
When does the clock start?
Determining the exact starting date can be complicated. In a layoff case, it may begin when the worker receives definite notice of the discriminatory decision, rather than the final day of employment.
For example, if you are told on March 1 that your employment will end on April 30, the filing period may begin on March 1.
Do not calculate your deadline based only on your last paycheck, final workday, or the date your severance ends.
Other processes usually do not pause the deadline
The EEOC says its filing deadlines generally are not extended while a worker pursues another process, such as:
- An internal HR complaint or investigation
- A union grievance
- Arbitration or private mediation
- Severance negotiations
- An appeal to management
- Waiting for the employer to answer questions
You may be able to pursue more than one process at the same time, but do not assume another process protects your EEOC deadline.
An Online Inquiry Is Not Necessarily a Filed Charge
This is one of the most important distinctions in the process.
Submitting information through the EEOC Public Portal does not necessarily mean that you have formally filed a Charge of Discrimination.
The usual online process is:
- Create an account in the EEOC Public Portal.
- Submit an online inquiry.
- Schedule an intake interview by telephone, video, or in person.
- Complete the intake interview.
- Review the proposed Charge of Discrimination.
- Sign and formally file the charge.
A charge is a signed statement alleging employment discrimination and asking the EEOC to take action. The EEOC says a formal charge can be completed through the Public Portal after an online inquiry and interview.
Read the EEOC’s explanation of a Charge of Discrimination.
Do not assume your inquiry protected your deadline.
Confirm that your charge has actually been signed and filed. Look for a charge number, filing confirmation, or a copy of the signed charge in the portal.
If your deadline is close and you cannot tell whether the charge has been filed, contact the EEOC immediately.
If you report that you have 60 days or fewer remaining, the Public Portal provides special instructions for filing quickly. The EEOC also advises people with fast-approaching deadlines to call 1-800-669-4000 to request an immediate interview or contact a field office. Charges are not taken over the telephone, but an EEOC representative can explain how to proceed.
You may also file in person, by mail, or through a qualifying state or local Fair Employment Practices Agency. A mailed charge must contain the required information and be signed.
What to Gather Before You Start
You do not need to possess every possible piece of evidence before contacting the EEOC. Do not miss a filing deadline because you are trying to build the perfect case file.
Gather what you lawfully have access to, including:
- Your layoff or termination notice
- Your severance agreement and any attached disclosures
- Performance reviews
- Disciplinary records or performance-improvement plans
- Relevant emails, messages, meeting notes, and written complaints
- Disability, pregnancy, religious, or other accommodation requests
- Relevant leave requests
- The employer’s stated reason for the layoff
- Any written explanation of the selection process
- Names and job titles of the people involved in the decision
- Names of possible witnesses
- Dates of complaints, accommodation requests, leave, investigations, and other important events
- Lawfully available information about employees who were retained or laid off
- Job postings or other evidence that substantially similar work was reassigned or refilled
- Notes about statements made by managers or decision-makers
- A written timeline that separates facts from assumptions
Approximate ages or other relevant information about retained and laid-off employees may be useful in some cases, especially when age discrimination is suspected. Use only information you already know or can lawfully obtain.
Do not take records you are not entitled to keep
Do not download, forward, photograph, or remove:
- Trade secrets
- Confidential customer or patient information
- Medical information belonging to other employees
- Private personnel records
- Proprietary business records unrelated to your claim
- Anything you were not authorized to access
Preserving evidence does not give you permission to raid the company’s files on your way out.
If you are unsure whether you may lawfully keep or use a document, ask an employment attorney before submitting or sharing it.
How to Explain What Happened
Your explanation should help someone unfamiliar with your workplace understand the issue without digging through your entire employment history.
Include:
- The protected basis involved, such as age, disability, race, sex, pregnancy, religion, national origin, or retaliation
- The employment decision, such as being selected for layoff
- The date you learned about the decision
- The effective date of the layoff
- The names and roles of the people involved
- The reason the employer gave you
- Why you believe discrimination or retaliation affected the decision
- Specific examples of unequal treatment, suspicious timing, relevant statements, conflicting explanations, or comparable employees who were retained
- The records or witnesses that may support your account
Separate what you personally know from what you suspect.
For example:
On June 10, I requested a disability accommodation in writing. My manager acknowledged the request on June 12. On June 24, I was told that my position was being eliminated as part of a reduction in force. Two employees performing substantially similar work were retained, and the company advertised a similar position three weeks later. My most recent performance review rated my work as meeting expectations.
That is more useful than accusing everyone involved of secretly plotting against you without explaining the facts.
Be accurate. Do not exaggerate or diagnose someone else’s motives. Relevant facts, dates, documents, and comparisons are far more useful than volume.
What Happens After You File
Filing a charge does not guarantee a full investigation, a finding in your favor, a settlement, or a lawsuit.
After a charge is formally filed:
- The EEOC generally notifies the employer within 10 days.
- The EEOC may close the charge early if it is untimely, the laws it enforces do not apply, or the agency determines it is unlikely to establish a violation.
- The charge may be offered for voluntary mediation.
- The EEOC may ask the employer for a written position statement and supporting records.
- You may be able to review the employer’s position statement and submit a response through the Public Portal.
- An investigator may request documents, written answers, witness interviews, or other information.
- The charge may be settled during the process.
- The EEOC may find reasonable cause to believe discrimination occurred and attempt to resolve the matter through conciliation.
- The EEOC may decide whether to pursue litigation itself.
- The EEOC may close the charge and issue a Notice of Right to Sue.
How much investigation occurs depends on the case. Some charges are dismissed without an extensive investigation.
Keep your contact information current in the Public Portal and check messages regularly. Missing an EEOC request or allowing an email to rot in a spam folder can cause serious problems.
If another potentially discriminatory or retaliatory event occurs after you file, contact the investigator promptly. An earlier charge may not protect the deadline for a later event.
How Long the Process May Take
The EEOC currently says it takes approximately 10 months on average to investigate a charge. Some cases take considerably less time. Others take much longer. The EEOC says cases resolved through mediation are often completed in less than three months, but mediation is not offered or accepted in every case.
See the EEOC’s current timing information.
A realistic note about timing
The EEOC process may move much more slowly than you expect. Keep copies of everything you submit and receive, check the Public Portal regularly, keep your contact information current, and respond promptly to requests. Long stretches without an update do not necessarily mean your charge has disappeared or been closed.
Mediation
EEOC mediation is:
- Free
- Confidential
- Voluntary
Both you and the employer must agree to participate. The mediator is neutral and does not decide who is right, whether discrimination occurred, or what either side must accept.
The purpose is to see whether the parties can reach a voluntary resolution. A settlement may include money, changes to employment records, a neutral reference, policy changes, or other agreed terms.
If mediation does not resolve the charge, it generally returns to the regular EEOC process. Information revealed during EEOC mediation is confidential and is not provided to the investigators handling the charge.
Read the EEOC’s mediation questions and answers.
You do not have to hire an attorney to participate in mediation, although either party may have an attorney or another representative.
Notice of Right to Sue
A Notice of Right to Sue gives you permission to file certain discrimination claims in court. It does not mean the EEOC found that discrimination occurred.
For claims under Title VII and the Americans with Disabilities Act, you generally need a Notice of Right to Sue before filing a federal lawsuit. Once you receive the notice, you generally have 90 days to file.
That deadline is short and unforgiving. If you receive a Notice of Right to Sue, speak with an employment attorney immediately, even if you are still deciding whether to sue.
Different rules apply to claims under the Age Discrimination in Employment Act and Equal Pay Act. For example, the EEOC explains that an ADEA claimant may file in federal court 60 days after filing the EEOC charge without first receiving a right-to-sue notice. Do not assume the same lawsuit rules apply to every type of claim.
When to Consider an Employment Attorney
You do not need an attorney simply to contact the EEOC or file a charge. The EEOC can accept a charge from a worker who is not represented.
The EEOC is a government enforcement agency, however. It is not your personal attorney and does not provide the same individual representation or strategic advice that your own lawyer would.
Consider speaking with an employment attorney promptly if:
- Your filing deadline may be close.
- You cannot determine which filing deadline applies.
- You received a Notice of Right to Sue.
- A severance agreement asks you to release discrimination claims.
- You are age 40 or older and received group-layoff disclosures with a severance agreement.
- Your case involves several laws, employers, states, or government agencies.
- The employer provided extensive statistical or selection information.
- Important evidence may be difficult to obtain or preserve.
- You are considering a lawsuit.
- The employer or its attorney has proposed a settlement.
- You are being asked to withdraw your charge or waive legal rights.
An attorney may also help you decide what information belongs in the charge. That can matter because claims omitted from the administrative process may be harder or impossible to pursue later.
Special Rules for Federal Employees and Applicants
Do not use the ordinary private-sector filing steps if the employer was a federal agency.
Current federal employees, former federal employees, and applicants for federal employment generally begin with the EEO office of the federal agency involved.
You generally must contact an agency EEO counselor within 45 days of the discriminatory event or personnel action.
The basic federal process usually begins like this:
- Contact the agency’s EEO office and request counseling within 45 days.
- Participate in EEO counseling or an offered alternative dispute resolution process.
- If the matter is not resolved, receive a Notice of Final Interview.
- File a formal discrimination complaint with the agency, generally within 15 days after receiving that notice.
- The agency accepts, investigates, or dismisses the complaint.
- Depending on what happens, you may later request an EEOC hearing, appeal an agency decision, or pursue a lawsuit.
There are exceptions and additional rules involving union grievance procedures, Merit Systems Protection Board appeals, mixed cases, class complaints, and age-discrimination claims.
Do not assume an ordinary inquiry through the EEOC Public Portal satisfies the 45-day requirement. Contact the employing agency’s EEO office directly and keep proof of when you made contact.