Question: After a 7-1/2 year tenure, my position was eliminated. My employer offered me a severance package of two weeks per year, totaling 15 weeks. I sent my employer a letter via email and certified mail, return receipt requesting 52 weeks of severance based on well-documented race/age discrimination and retaliation. No response, so I resigned.
I also filed a three-count complaint with the federal Equal Employment Opportunity Commission (“EEOC”). More than 60 days have passed and they have not responded to that complaint, either, either to me or to the EEOC.
Have you ever heard of an employer never responding, and what should I be prepared for?
Charlotte, North Carolina
Answer: Dear Michael: In my experience, the non-response of your former employer is quite unusual. That said, I can think of a few reasons this might have taken place, and this is what you can expect:
1. The failure of an employer to respond to an employee’s counteroffer and EEOC complaint could be plain old negligence or simple old arrogance. Napoleon Bonaparte said that, when trying to determine if something unusual is motivated by either stupidity or cunning, it is almost always stupidity. My own experience makes me agree with his assessment. Your file could still be sitting on the desk of some Human Resources representative who was fired six months ago. I have seen many employers act in this way.
2. The failure of an employer to respond to an employee’s counteroffer and EEOC complaint could also be a tactic of sorts: to ignore anything that it is not required to respond to (a) possibly to avoid committing to a position, and (b) possibly to save on legal fees. It remains possible, though, that your employer’s failure to respond could be intentional. First, no one has to respond to anyone else’s letter. It may be discourteous, it may be unwise, and it may be self-destructive, but that is not illegal. Second, the same goes for an employer’s failure to respond to a Charge of Discrimination filed with the EEOC: it has no real consequences upon the employee or the employer.
3. It’s important to understand that the EEOC does not find employers “innocent” or “guilty,” but only issues their conclusion regarding whether “probable cause” exists to believe discrimination has taken place. Some people believe – in error – that the EEOC is like a Court that finds parties “innocent” or “guilty.” Some people believe – in error – that the EEOC is an enforcement agency that can order employers to do what is legal, or pay some penalty. The truth is that the EEOC is simply an agency that (i) investigates allegations of discrimination, (ii) helps employees and employers settle their disputes, and/or (iii) issues a finding that there exists, or there does not exist, probable cause to believe discrimination has taken place.
Either way – whether probable cause has been found or has been found not present – the EEOC then issues a “Right to Sue” letter, with which an employee can then file a discrimination lawsuit in Federal Court. (The EEOC may take on the cause of a mistreated employee or group of employees, but that is exceedingly rare.)
All of the way up to an employee’s filing of a formal Court Complaint in Federal District Court, the employer can without risk simply ignore the process, although very few do so. So, ignoring both your letter, and the EEOC Charge of Discrimination you have filed, might just be a tactical decision of your former employer’s legal counsel. That said, it would be rather uncommon.
4. Your employer may believe you won’t ever go to Court, or pay the money to hire an attorney to help you do so. If you filed your own EEOC complaint, your employer may believe that you do not have it in you to file and prosecute your own lawsuit, or the funds to hire an attorney to do so for you. Frankly, this is the most likely reason they may be simply “laying in wait” to see what happens after the EEOC process has concluded.
Please understand that you can file and prosecute your own federal discrimination lawsuit without an attorney. In fact, in each federal District Court there exists an office called the “Pro Se” office, which assists people in doing just that. “Pro Se” is Latin for “for yourself,” and in my experience Pro Se Clerks, who are licensed attorneys, themselves, are very understanding, helpful, and gracious, as are most Federal Judges when it comes to Pro Se litigants.
Personally, I love to see non-attorneys represent themselves in Court. They often do better than attorneys, and juries really love them!
5. An employer can even ignore a filed Court Complaint, but doing so might just be to its considerable detriment. If one side in a Court case is served with a Court Complaint, and fails to respond in Court, the Court can find that person or company to be liable in what is called a “Default Judgment.” If, for example, an employer has gone out of business, or declared bankruptcy, it may ignore even a Court Complaint because you cannot collect money from a defunct or bankrupt company.
Obviously, Michael, I cannot even speculate why your employer has been completely unresponsive to your letter and to your EEOC Charge of Discrimination. That said, I would bet on the reason being one of those mentioned above.
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Michael, I hope this is helpful, and that whatever you should decide, I hope you do not become intimidated or disillusioned by the actions or inactions of your employer. Standing tall takes patience and persistence, but it is surely worth it. I salute your efforts to date, and hope you keep at it!
My Very Best,
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