How to Fight Discrimination or Retaliation

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• The Employment Law Complaint Process

There are many laws designed to protect employees from discrimination and retaliation, ranging from the federal Age Discrimination in Employment Act (1967) to state laws such as the Illinois Human Rights Act (1979). Together, they serve a valuable purpose.

“A discrimination- and harassment-free working environment is one of the key features of our country. It’s a fundamental civil right that all Americans enjoy,” says Randall B. Gold, an employment attorney with Fox & Fox S.C. in Chicago.

The Employment Law Complaint Process

So what should you do when your employer runs afoul of one of these protections? Often, the  first step is to contact an employment lawyer. In the initial consultation, which typically lasts between one and two hours, you and the attorney sift through the circumstances and documents relating to the harassment, firing, layoff, or whatever the issue might be. If you decide to work together, you then can file a charge with either the federal Equal Employment Opportunity Commission (EEOC) or the state Illinois Department of Human Rights (IDHR). This must be done within 300 days of the incident.

“As a plaintiff’s attorney, you help draft the charge for the client,” says Cynthia H. Hyndman, an employment attorney with Robinson Curley in Chicago. “You then talk to the investigator at the agency and respond to questions, and help them move things along to get their job done. You’re advocating for your client like you would in a court case. It’s just a little less formal.”

Hyndman notes that an attorney isn’t required to file a charge with either the EEOC or IDHR. “The agency is designed to help people who don’t have an attorney navigate the process. You can always just go to the EEOC or IDHR if you suspect your employer has taken some adverse action against you. They fired you, they didn’t promote you—something along those lines. Because of your membership in a protected class—your race, gender, sexual orientation—there are a lot of different protections. Illinois law tends to protect a little more broadly than federal law does, but you can go to either of these agencies and talk to someone there.”

Nevertheless, an attorney can make a potentially intimidating and complicated process a little less so. Once you’ve filed your charge, the agency sends it to your employer and conducts an investigation. Based on what is uncovered, the agency determines whether there’s evidence that a violation occurred. If the case is being handled by the IDHR, there’s an additional step: A fact-finding conference occurs in which you and the employer, as well as your attorney if you have one, meet face-to-face with the investigator.

But even if a case is decided in favor of the plaintiff, justice doesn’t necessarily come swiftly. “It could take anywhere from a year to two years, maybe even longer, depending on the complexity of your case,” Hyndman says. And if the case winds up going to trial? Tack on another year or two. Gold estimates, however, that about 95% of these cases are resolved before trial.

Despite the long and winding road, Hyndman says the journey is worthwhile. Like Gold, she believes safeguards against workplace discrimination and retaliation are essential.

“It’s important for employees to be able to challenge their employers, because in Illinois and in most other states ‘at-will employment’ is the law, meaning that employers can fire you for really any reason at all,” Hyndman says. “You want to keep employers honest and not have them making employment decisions on the basis of your race or gender or sexual orientation. Title VII [of the Civil Rights Act] has been around since 1964. These laws protecting people from discrimination have been around a long time. Yet it still happens.”

For more information on this area of law, see our overviews of employment law, wrongful termination, and sexual harassment, or reach out to an employment law firm for legal advice.