The Nebraska Equal Opportunity Commission (often called the “NEOC”) is a Nebraska state agency which is primarily dedicated to enforcing Nebraska laws against discrimination. Below, the focus will be the role of the NEOC when it comes to discrimination involving employment matters.
What kind of employment laws does the NEOC enforce?
Nebraska has special laws that prevent an employer from discriminating against employees in the workplace. Under the Nebraska Fair Employment Practice Act (often referred to as “FEPA”), it is unlawful to discriminate against an employee because of his or her race, color, national origin, religion, sex (including pregnancy), disability, and marital status.
Also, under the Nebraska Age Discrimination in Employment Act, an employee cannot be discriminated against because he or she is over the age of 40.
In addition, under the Nebraska Equal Pay Act, it is unlawful to pay men and women differently on account of their gender for doing the same job.
These laws also make it unlawful to retaliate against an employee who complained about discrimination/harassment in the workplace, participated in an investigation of discrimination at the workplace, or refused to participate in an illegal activity requested by the employer.
There are also federal laws that also make discrimination illegal in the workplace. Therefore, the NEOC will also enforce violations of Title VII of the Civil Rights Act of 1964 (usually called “Title VII”), the Age Discrimination in Employment Act, and Title I of the Americans with Disabilities Act (also called the “ADA”).
What is unlawful discrimination?
Discrimination may include unlawful termination, demotion, reduced pay, reduced hours, refusal to accommodate a religious belief or disability, or a hostile work environment.
Unlawful discrimination occurs when an employee suffers the above-mentioned adverse employment action targeting a protected class or activity. Therefore, the NEOC will only consider claims of discrimination that violate Nebraska or federal law.
For example, if an employee is demoted because of her religious beliefs, that would be an act of unlawful discrimination. Another example would be terminating an employee because of his skin color or national origin. Treating employees of one protected class less favorably than employees of belonging to a different protected class.
For a more in-depth discussion about discrimination due to a protected class or protected activity please click here.
When should I file a Charge of Discrimination with the NEOC?
If you believe you were discriminated against at your job because of your protected class, or because you complained about discrimination or harassment that you observed in the workplace, or because you engaged in another kind of protected activity, you may file a Charge of Discrimination with the NEOC.
Under the Nebraska laws discussed above, you must file a Charge of Discrimination with the NEOC or file a lawsuit in Nebraska state court within 300 days of suffering the unlawful discrimination and/or retaliation. If you do not file a lawsuit in court or file the Charge of Discrimination with the NEOC within 300 days, you likely will be prevented from pursuing your discrimination claims.
If you want the protection of the federal laws stated above, you cannot file a lawsuit without first filing your Charge of Discrimination with either the NEOC or the United States Equal Employment Opportunity Commission. In Nebraska, you have 300 days from the time of the discrimination and/or retaliation to file with the NEOC or the EEOC your discrimination claims arising under federal law.
Please keep in mind, some of the anti-discrimination laws require that your employer have a minimum number of employees before you can sue or file a charge of discrimination. For example, FEPA, Title VII, and the ADA only apply to employers who employ at least 15 employees. The Nebraska Equal Pay Act and claims for age discrimination only apply to employers with at least 20 employees.
What happens when I contact the NEOC?
First, an intake investigator will schedule a time to discuss your complaint. Most likely, this will take place over the phone. While discussing your complaint, you will talk about topics including: (1) providing information about the employer (name, address, and approximate number of employees); (2) your work experience and qualifications for the job you have or had with the employer; (3) why you believe you have been discriminated against; (4) a description of the kinds of evidence you are aware of that supports your allegations of unlawful discrimination, harassment, and/or retaliation; and (5) which laws may have been violated.
Second, the investigator will draft a formal Charge of Discrimination. You will be responsible for looking it over, making sure the information is accurate, signing it in front of a notary, and returning it to the NEOC. You also may have some additional information to fill out, particularly if you claim discrimination due to a disability on account of your physical or mental health.
What happens after I file the Charge of Discrimination?
After you return a notarized Charge of Discrimination to the NEOC, the NEOC will send the Charge to the employer within ten days. Generally, the NEOC will require the employer provide a response within 30 days. Be aware, employers often ask for and receive an extension.
If both you and the employer indicate to the NEOC an interest in settling the Charge of Discrimination, the NEOC will help mediate the dispute or engage in pre-determination settlement.
Mediation is a process where a neutral person within the NEOC helps the parties come to a mutual agreement as to how to resolve the dispute. This process is usually done in person. Sometimes the parties are in the same room and sometimes the employee and the employer are kept in separate rooms. The process is confidential and very often, the parties will be represented by legal counsel.
Alternatively, the parties may choose to engage in pre-determination settlement (PDS). This process does not involve a face to face meeting. During the PDS process, a facilitator from the NEOC will correspond and communicate with the parties and act as an information provider.
The NEOC Investigation
If both sides do not agree to a resolution, the NEOC will assign the case to a fact investigator.
The fact investigator will request information and documentation from both parties. Each party may respond to the information provided by the other party and may give the investigator supporting evidence. Sometimes, the NEOC will interview witnesses. The investigator will share the information he or she has learned with both parties. The NEOC determines the appropriate level of investigation in each case. Some cases get more attention than others.
The NEOC receives a lot of Charges of Discrimination. A determination can take over 6 months. The investigator does not make the determination. Once the NEOC completes its investigation, the NEOC’s Executive Director will make a determination of either Reasonable Cause or No Reasonable Cause for cases involving FEPA. If your Charge involves age discrimination or the Equal Pay Act, the Commission members make the determination by a majority vote.
No Reasonable Cause
If the decision is No Reasonable Cause, this will conclude the NEOC’s handling of the Charge of Discrimination. If the decision is No Reasonable Cause, and your Charge of Discrimination included claims under federal law, you may ask the EEOC to conduct a substantial weight review of those federal claims.
Under a No Reasonable Cause determination, you will be given 90 days from the date you received written notice of the finding to file a lawsuit in court. If you do not file within 90 days, you likely will be prohibited from filing a lawsuit on those claims.
If the decision is Reasonable Cause, the NEOC will ask the employee and the employer if they wish to engage in a process called conciliation. Conciliation works very similarly to mediation and/or PDS discussed above.
If there is no agreement made to resolve the discrimination claims after attempts at conciliation, the employee has a right to request a public hearing through the NEOC or to file a lawsuit in court. If you request a public hearing, and one is not provided, you will be given a right to sue letter so that you can pursue your claim in court.
Do I need an attorney to file a Charge of Discrimination and is there a filing fee?
There is no cost to you to file a Charge of Discrimination. There are no filing fees.
You do not need to have an attorney represent you. However, you are allowed to have legal representation. Having an attorney represent you may be useful during the NEOC process. An attorney may help you better understand the strengths and weaknesses of your claim, advise you on matters relating to settlement, and help guide you on whether or not you wish to pursue an action in court.