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Anonymous
I am sorry you are going through this. It’s tough and challenging no matter what the circumstances are.
So I used to work as an employment discrimination investigator (often called an equal employment opportunity investigator but each agency will vary this title some). The laws you filed under are typically under your local (city and/or county), state, and federal civil rights, ageism, and disability laws.
First, almost every civil rights agency is grossly understaffed due to being underfunded. That’s typically why it takes so long for any discrimination complaint to get picked up by an investigator. Sad but true.
Second, the employer always files for an extension because of how everything works. They aren’t given a ton of time initially and everything is going through their cooperate attorneys. The agency you filed with, takes your various charges of discrimination and submits it to your former employers and then the former employer has to gather a lot of evidence for each and every charge of discrimination. And with a 23 year work history, they would have a lot of information accumulated to work through. They also have to go to managers and get their files too. It’s a lot of paper chasing so an extension is always asked and typically granted. In my experience, they can’t abuse this and request an extension after extension.
Third, since they terminated you, they have to demonstrate to the civil rights agency, that they terminated you with just cause, ie they had a justified reason to terminate you that was NOT discriminatory in nature. So they have to prove that you were not a good employee, which is why they brought up things that happened that were decades ago. In addition, your former employer has to go through and give multiple other examples of people they had to terminate for same or similar reasons. This can range from a few people to hundreds of people in their employment. This is actually a huge chunk of their defence (and takes a lot of time), and how they prove they did not discriminate against you. In their examples of terminating (or disciplining) other employees, they will have examples of people from various races, ages, sexes, and disability statuses to demonstrate they did not violate any laws in doing what they did to you, including not retaliating against you.
Fourth, if you felt you were discriminated against and there’s no paper trail of it (specifically emails), they can claim they were unaware of it and thus, couldn’t act on the matter. Unless you have copies of the emails or other corroborating evidence. Discrimination is SO tough to prove because they can easily claim ignorance.
Fifth, typically every employer I’ve seen terminates the former employees ability to get at emails and anything in their desk. This helps them be cause if you had emails talking about this, without sending them to a personal account, they might as well not exist.
Another factor that trips up employees, especially female employees, is being nice and polite in work emails. I don’t advocate for being rude, but often challenging topics get tip-toed around and aren’t directly addressed, so a third party has difficulty assessing the depth, breadth, and scope of a situation. Women are so conditioned to be super nice and non-confrontational, and that’s to our detriment. (Black women are also so easily labeled with the “angry black woman” trope and that’s horrible too. This is a huge issue but that’s a whole other topic).
You asked about reaching out your investigator, I’d say to reach out and get out a pen and paper to write down a bunch of information. Step back as much as you can, put on your analytical hat on, and ask about the discrepancies. You said you were a good employee, is there documentation from the employer of this? Be specific. If you can remember awards, and email details, all the better. Be a specific and detailed as possible. Are the annual reviews what you remember? The employer stated they had to redo your work, is that true at all? If it is, explain it. But also, can they actually produce work they asked you to redo. If they provided your investigator with evidence, ask about specifics as you can’t see exhibits until the case is determined, but you can take detailed notes. Your investigator can request more information, if he/she/they think it’s relevant to the discrimination complaint (and that’s often tied to how the discrimination charge was originally written).
Also, why were you terminated on your FMLA date. Ask for that rationale.
REMEMBER IF ITS NOT DOCUMENTED IT DOESN’T EXIST
Bottom line is, it’s challenging to prove discrimination as employers as well versed in what to do and employees are mostly left in the dark about what and how to document in the event of needing evidence later.
Current and past employees statements are somewhat helpful but documentation during a same/similar event with other employees are best. Employees are protected against retaliation if they provide evidence in your discrimination complaint but that’s often not enough for them to come forward (again, employers are taught well and employees much less so).
Good Luck and again, I’m so sorry you’re having to go through this. It’s definitely no fun.
PS: Did you get the same exact response that your investigator got? Am I clear about that? And were the names redacted? It doesn’t sound as if they were.
Anonymous
The names were not redacted at all and I thought this was them sharing confidential information that shouldnt have been shared with me. Since the writing of my question.. you have been dead on with your responses on what is taking place. They have brought op the old old, 20+ years ago while I was in training. And at that point, If I were so bad...they should have gotten rid of me then. Thank you for your response
Anonymous
Ironically, there are employers who don’t redact names in the evidence portion. That is the exception, because they know that at the end of the investigation, the complainant can see the entire file.
Is there anything I can do to help? Please let me know.
Colleen Hanson
Unfortunately it has been my experience that these turn into a he said/she said mess. In the end all you can do is provide as much written documentation as you can. If you can get statements from CURRENT employees, that will help also. Statements from former employees are usually seen as "disgruntled" and they don't read much into them. The situations I faced were all "in person" sexual harassment and there was no written documentation. My former employer threatened the job of all current employees if they spoke about the incidents that occurred. My employer would act as though he was removing his "male part" from his pants, going so far as to unzip his pants and "cup" his area with his hands, going from female to female acting as though he was swinging his "male part" back and forth in front of them. With the exception of myself and the Office Manager, all of the other employees were young females and they thought he was cute and loved his little displays thinking they were going to be the next one to "take a ride in his fancy sports car". He was a married man who was known to leave the office with young female employees for extended periods of time in his sports car-real scum bag. His actions were, by law, sexual harassment, but because no one would speak out against him and there was no written documentation, my claim was dismissed.
Hounding the ERD with anything other than written documentation will do nothing but make them see you as a "difficult" employee adding only to your employers claims, so I would lay low until they contact you. In the meantime you just need to make sure that you have provided them with all of the written documentation that you have.
Best of luck!
Anonymous
Your situation was horrible to say the least. I have provided as much as I could, and even with current employees. Unfortunately, I fear, and the current employees fear retaliation if they speak in my favor. I've submitted what I have, after his request. Just keeping fingers crossed now.