How Do I File A Claim?
How do I file a state claim with the Texas Workforce Commission?
To file a claim of sex discrimination with the Texas Workforce Commission, your first step is to contact the Commission to fill out an Intake Questionnaire. The Questionnaire asks you for your basic contact information, the basis for your complaint (i.e. sex discrimination), the date of the last incident of discrimination, the date you were hired at your job, the position you held, and details about the discriminatory employment action taken against you (i.e. you were demoted). You must provide the Commission with the exact date of every separate action taken against you as well as the full name and position title of each person involved in the incident. The Commission needs this information to conduct a thorough investigation. An intake worker at the Commission can assist you if necessary.
How do I contact the Texas Workforce Commission?
You can contact the Texas Workforce Commission Civil Rights Division to obtain an Intake Questionnaire in person, by phone, or by mail. The Division Office is located at 6330 Highway 290 East, Suite 250, in Austin, Texas. The toll-free number is 1-888-452-4778. You can write the Commission at P.O. Box 13006, Austin, TX 78711-3006. The Intake Questionnaire is also available online at the Commission's website.
Against whom can I file a claim?
You can file a complaint of sex discrimination against your employer. Understand, however, that although you can file a complaint of sex discrimination against your employer (i.e. the company) under Texas law, you cannot directly file a complaint against individuals who have discriminated against you. Thus, you cannot directly file a complaint against your boss, supervisor, manager, or co-workers in their capacity as individuals, but the company as whole can be made to answer for their discriminatory acts.
If I choose to file a claim, what is expected of me?
More than anything else, if you choose to go forward with a complaint against your employer, you are going to have to exercise an inordinate amount of patience. The process ahead of you could be rocky and full of administrative difficulties, depending on how efficient your local commission is and how cooperative your employer is. In addition, you are expected to be honest and candid with the commission about the discrimination you have faced — even if it means discussing events that have caused you pain, embarrassment, and humiliation. You should hope for a positive outcome, but prepare for disappointment if the commission finds for your employer. And even if you win, you may feel as if any remedy granted to you by the court cannot fully erase the pain of the discrimination you have faced. If you doubt your ability to go through with the legal process, you may wish to consider other ways to confront your grievances with your employer.
How long will the process take?
It varies from case to case. If you are fortunate, your case may only take a few months to resolve. But, it is not uncommon for a sex discrimination case to last several years.
Do I need an attorney?
You do not need an attorney to file a complaint with the Commission , although you (or your employer for that matter) "may be represented by an attorney or designated agent." On the one hand, retaining an attorney may turn out to be costly, depending on your case, and the Commission provides all its services for free. On the other hand, retaining your own attorney has numerous advantages. Having an advocate in your corner to explain the law and answer any questions as you embark on the filing process is a tremendous benefit. In addition, after the Commission concludes its investigation and arbitration, you will still have the right to sue your employer. If you choose to go forward with a lawsuit, you will absolutely need an attorney to take your case to court.
Where do I find an attorney?
You may be able to find an attorney from the Texas State Bar Association, the National Employment Lawyers Association, or simply the phone book. The Texas Workforce Commission does not directly refer people to attorneys, but may direct women to the Texas State Bar Association's lawyer referral service (Telephone: 1-800-9TEXBAR, available Mon. to Fri. 8 a.m. to 5:30 p.m.) or another referral agency in your county.
What if I can't afford an attorney?
Depending on the attorney you contact, most attorneys will be willing to negotiate a fee arrangement that you will find acceptable. If you ultimately choose not to pay for an attorney and you want to challenge your employer's discriminatory practice, you may wish to consider some tactics that other women have tried in the workplace.
What will my attorney need from me?
Just like the Commission attorneys, your attorney will require your patience, trust, honesty, and candor. Your attorney will need to know all the details about the discrimination you have faced from your employer. S/he has an ethical obligation to maintain attorney-client confidentiality — that means, everything you say to your attorney remains private. Your attorney may also ask you to recall names, documents, dates, and even times as you reconstruct the events surrounding the discrimination. The more you can help in this effort, the easier it will be for him or her to ultimately help you.
Do I have to contact the Texas Workforce Commission?
You have to contact the Texas Workforce Commission, the Equal Employment Opportunity Commission, or a local commission if you want to pursue a complaint against your employer. Nonetheless, you may choose to confront sex discrimination in your workplace without engaging in the legal process, simply by commencing a dialogue with your employer. You may determine that you do not have enough facts to proceed with a claim, in which case you should not contact the Commission. If you have any doubts about whether you have a claim of sex discrimination, start by learning about the law in Texas or consult with an attorney.
Can't I sue my employer directly without going through the Texas Workforce Commission?
You must exhaust all "administrative remedies" before going through the court system. State and federal courts will dismiss a woman's complaint for failure to first file a complaint with the local human rights commissions or the Texas Workforce Commission.
Who will investigate my complaint?
The local commissions have the power to "receive, investigate, conciliate, or rule on [a complaint of sex discrimination] and may file a civil action to carry out the purposes" of the TCHRA. They have the power to call witnesses by subpoena as well as to order the production of records, documents, and relevant evidence.
What do I do after my initial contact with the Texas Workforce Commission?
After you submit your Intake Questionnaire to the Commission, it will be reviewed to ensure that the information you have provided is sufficient for a formal complaint. If so, your claim will be assigned to an Investigator. The Investigator will assist you in creating what is called a "perfected complaint." Essentially, the "perfected complaint" translates the information provided on your Intake Questionnaire into a formal, legal complaint of sex discrimination against your employer. At that point, s/he will send you the drafted complaint as well as a standard confidentiality form. You must review, sign, and notarize the complaint and sign the confidentiality agreement, and return both to the Commission within 30 days from when you received them
What happens after I submit my perfected complaint?
Once you have submitted your perfected complaint, your case will be processed: It will be given a "complaint number" and assigned to a commission employee. Within 10 days, a copy of the complaint will be sent to your employer. The Commission will then attempt to settle your claim without an investigation by attempting what is known as "Alternative Dispute Resolution" before proceeding to the investigation phase, if necessary.
What is "Alternative Dispute Resolution" and what are its benefits?
"Alternative Dispute Resolution" (ADR) is a process by which the Commission will attempt to facilitate a voluntary settlement between you and your employer. ADR is sometimes referred to as "mediation." If the Commission believes that your case is appropriate for ADR, it will send a referral notice to you and your employer inviting you to attempt ADR. The Commission will send its referral within 10 days of receiving your perfected complaint.
ADR has many benefits: First and foremost, ADR allows the parties to resolve their dispute without a lengthy and expensive court challenge. In addition, a successful mediation may generate faster results than waiting for the Commission to complete an investigation of your employer. On the negative side, however, even if the dispute is resolved to your satisfaction, the Commission makes no official finding that your employer discriminated on the basis of sex. Down the road, if your employer ever discriminates again, nothing from your ADR will be admissible as evidence that your employer has engaged in a pattern of discrimination.
Do I have to partake in "Alternative Dispute Resolution"?
"Alternative Dispute Resolution" ("ADR") is not mandatory. Under the law, a party must have a "reasonable basis" for an objection to ADR, submitted within five days of the Commission's referral to ADR. In practice, however, if neither party wishes to pursue ADR for whatever reason, the Commission generally will immediately proceed to investigation phase.
How does "Alternative Dispute Resolution" work?
An impartial facilitator will meet with you and your employer in the same room, and encourage both sides to resolve your differences. The facilitator remains a neutral party at all times, and does not "decide" any issue in the dispute. The process can be terminated at any point along the way at the mutual consent of the parties after one session has been completed. The entire mediation has 45 days to work. Any settlement agreement will be binding and enforceable on you and your employer. If no resolution emerges, your case will proceed to the investigation phase.
What happens during the investigation phase of my complaint?
During the investigation, the Commission gathers evidence of your employer's discrimination as specified in your complaint. The Commission has the power to call witnesses, seek documents and records, take statements from the parties, inspect your workplace, and hold "fact finding conferences" with you and your employer to ascertain the facts of your complaint. The Commission has the power to compel the appearance of, or subpoena, witnesses or production of documents and other evidence for the benefit of the investigation. Failure to comply with a Commission's subpoena could result in Court taking you, your employer, or any other relevant party to court
What happens when the Commission concludes its investigation?
At the end of the investigation, the Commission makes a formal determination of whether your employer discriminated on the basis of sex. Such a determination is known as "reasonable cause" under Texas law.
What happens if the investigators determine that no "reasonable cause" exists?
If the Commission determines that no "reasonable cause" exists, it means the Commission did not find enough evidence to support your suspicion that your employer discriminated on the basis of sex. At that point, the Commission will inform you and your employer of its determination via certified mail. Even if the Commission does find that "no reasonable cause" exists, it will still inform you of your right to pursue a lawsuit against your employer. If for whatever reason the Commission neglects to send you a notice of your "right to sue" your employer, you will still have the right to proceed with a lawsuit.
What happens if the investigator determines that "reasonable cause" exists?
If the Commission makes an official determination that "reasonable cause" exists to believe that your employer discriminated against you, it will first attempt to settle the matter informally through what is known as "conciliation." In extreme cases of workplace sex discrimination, the Commission may seek a court order against your employer to suspend its discriminatory practice while it continues to press a settlement. If the commission cannot negotiate a settlement between the parties, the Commission may decide to bring a civil action against your employer on your behalf. You have a right to become a party in that lawsuit as well. If the Commission chooses not to pursue a civil action against your employer, it will still inform you of your right to pursue a lawsuit against your employer.
Can I sue my employer?
Ultimately, you do have a right to sue your employer under the TCHRA, however, you have to exercise the appropriate administrative channels first. You will have a right to sue your employer whether the Commission determines "reasonable cause" exists or not. Be aware, however, that if you settle the dispute with your employer during "Alternative Dispute Resolution" or through "conciliation," you may be asked to agree that you will not proceed with a lawsuit against your employer, except, if your employer fails to comply with the settlement.
What is a "right to sue" letter?
A "right to sue" letter, or notice of a "right to sue," is a notice that ends the Commission's investigation of your employer, and allows you to proceed with a lawsuit against your employer in state or federal court.
How do I obtain a "right to sue" letter?
Usually, when the Commission finishes its investigation of your employer and makes its final determination of whether "reasonable cause" exists, it will automatically provide you notice of your "right to sue" your employer.
Can I appeal a decision of the Texas Workforce Commission?
The Commission itself does not offer any appeals process. If you disagree with the Commission's decision, you may wish to consider exercising your right to file a lawsuit against your employer in state or federal court.
Can I file a federal claim of employment discrimination as well? If so, how?
Yes, you can file both a state and federal claim. When you file a claim with the Texas Workforce Commission, you can ask the Commission to jointly file your complaint with the EEOC. Although ultimately only one of the agencies will investigate your claim, both federal and state law protect you against sex discrimination.
What are the advantages and disadvantages of filing a federal claim over a state claim?
As Texas law mirrors federal law, there are no discrete advantages or disadvantages of filing a federal claim over a state claim. Your attorney may have strategic reasons for choosing to use the state system over the federal system (i.e. preferred judges or quicker trials, etc.). Be aware, however, that under work sharing agreements between the EEOC, and the Texas Workforce Commission, you may file a claim with one agency only to have your claim investigated by another. Be prepared to be flexible, and allow the Commission to direct you where appropriate.
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