How to Sue a Labor Union for Discrimination

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1Filing an Administrative Charge

2Consulting an Attorney

3Initiating Your Lawsuit

4Litigating Your Case

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Like employers, labor unions also are covered by state and federal anti-discrimination laws. Labor unions cannot discriminate in any capacity, including when representing employees in collective bargaining. If your labor union has discriminated against you on the basis of your race, religion, sex, age, or disability, you can sue the labor union for discrimination. However, you must first file a charge with the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces anti-discrimination laws in the employment context.

Steps

Part 1

Part 1 of 4:

Filing an Administrative Charge

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   Gather information. Before you sue a labor union for discrimination, you must first exhaust all administrative remedies by filing a charge with the EEOC or your state agency. When you submit your discrimination charge, you must provide evidence that supports your claim of discrimination.

   • Ideally, you should start a journal so you can write down incidents of discrimination as they happen.
   • This journal will give you specific details you need, such as the dates and times of the incidents and the names of the people involved.
   • You also may be able to gather evidence by talking to witnesses who saw the discriminatory acts. Get their names and job titles so you can include that with your report.
   • Discrimination is seldom overt. However, if you have any emails or other written correspondence related to the incidents you believe were discriminatory, you should gather those as well.
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   Give notice to the labor union. Before you submit a charge, you must notify the labor union of the discrimination and make an effort to resolve the situation on your own. Your notice should be in writing so you can prove to the government agency that you notified them.

   • The EEOC prefers that you make an effort yourself to resolve the situation by speaking directly to someone in the labor union, before you file a charge.
   • Your notice should describe the discriminatory incidents with as much factual detail as possible, and state that you consider the incidents to be illegal discrimination.
   • Typically the labor union will have a particular individual identified as the person who handles discrimination complaints.
   • If that person is involved in the discrimination you've experienced, or you can't notify the labor union for some other reason, be prepared to explain to the EEOC why you were unable to notify the labor union of the situation.
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   Confirm your eligibility. You cannot file a charge with the EEOC or your state's workplace discrimination agency unless you meet the basic eligibility requirements. The EEOC has an online assessment tool you can use.

   • Generally, you must file your charge within 180 days of the date the most recent discriminatory act occurred.
   • Smaller employers may not be covered by federal anti-discrimination laws, but all labor unions are.
   • For this reason, if you have been discriminated against by a labor union, you should be eligible provided you file your charge within the time period established by the EEOC.
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   Complete an intake questionnaire. To file a charge with the EEOC or your state agency, you must complete an intake questionnaire that identifies the labor union and describes the discrimination you've experienced.

   • The EEOC's questionnaire is three pages long, and requires factual details about the discriminatory incidents, including the date and time when those incidents occurred.
   • You can download the questionnaire online and fill it out on your computer, but you must submit it to an EEOC field office.
   • You can either take it to the nearest field office in person or mail it. Taking the questionnaire in person is more efficient because you'll be able to speak to an EEOC agent immediately.
   • You can find the nearest EEOC field office by checking the map at http://www.eeoc.gov/field/index.cfm.
   • Make a copy of your completed questionnaire for your records before you submit it to the EEOC.
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   Cooperate with the investigation. After you've submitted your intake questionnaire, your case will be assigned to a government agent. The agent will be responsible for investigating your charge and attempting to negotiate a settlement.

   • You'll be contacted by an agent for an interview within a few days after your questionnaire is received. This interview typically is completed the day you submit your questionnaire, if you take it into the field office in person.
   • Within 10 days of your interview, the agent sends a copy of your charge to the labor union. They have the right to respond.
   • If the agent finds a violation of the law, they'll assign your charge to an investigator. Otherwise, the agent will issue you a right-to-sue notice.
   • The EEOC has 180 days to complete its investigation. If 180 days pass from the date you submit your charge and the investigation is not complete, you may request a right-to-sue notice from the investigator working on your case.
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   Attempt mediation. If the EEOC uncovers violations of federal law as a result of the investigation, they may encourage a resolution of the dispute using mediation. Mediation brings you and the labor union together to negotiate a mutually agreeable settlement with the help of a neutral third party who serves as the mediator.

   • Mediation is a voluntary process, so both you and the labor union must agree to take part.
   • However, if you are able to resolve the dispute, the terms and conditions of your settlement will be outlined in a written agreement that becomes legally binding once signed by both you and an official representative of the labor union.
   • Mediation often can be a way to resolve the dispute without spending the time and effort on going to trial. But this doesn't mean you're obligated to take a settlement that isn't satisfactory to you.
   • If you are unable to resolve the matter through mediation, the EEOC may submit the issue to the Department of Justice for further action, or may send you a right-to-sue notice that enables you to file a lawsuit on your own.
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Part 2

Part 2 of 4:

Consulting an Attorney

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   Search for discrimination attorneys near you. If you decide to sue the labor union for discrimination, hiring a discrimination attorney is crucial. Federal court procedure is fairly complex, and discrimination cases can be difficult to prove.

   • A good place to start your search is the website of your state or local bar association. There you typically can find a searchable directory of attorneys licensed to practice in your area.
   • Choose a practice area related to employment discrimination to narrow down your search results to attorneys who take cases like yours.
   • You also may be able to find help from a nonprofit organization, depending on the type of discrimination you've experienced.
   • For example, if you were discriminated based on your disability, contact nonprofit organizations in your area that work with disabled people.
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   Schedule several initial consultations. Ideally, you want to interview at least two or three discrimination attorneys so you can choose the one with whom you think you'll work best. Discrimination attorneys typically provide a free initial consultation, so this shouldn't cost you anything but time.

   • Generally, you want to try to schedule your interviews within a week or two. If an attorney is too busy to meet with you in that time frame, they may be too busy to give your case the attention it deserves.
   • If you schedule more than one interview in the same day, allot at least a couple hours for the interview itself, plus travel time between the two offices.
   • Attorneys may request information about your case before the consultation. If they have forms for you to complete, make sure you fill them out and get them to the attorney as quickly as possible so they have time to review them before your consultation.
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   Ask each attorney lots of questions. Before your interview, think about the aspects of a productive attorney-client relationship that are important to you. The more questions you ask each attorney, the more value you'll get out of the initial consultation.

   • Find out how much experience the attorney has representing clients similar to you, with cases similar to yours. For example, after explaining your situation, you might ask "How many clients have you represented who had similar issues with their labor union?"
   • Keep in mind that discrimination cases can be very different. If you have been discriminated based on your disability, find an attorney with experience in disability discrimination cases, not gender discrimination cases. Ask about cases similar to yours, and what the results were in those cases.
   • You also want to find out what it's like to work with the attorney. Ask whether the attorney prefers phone calls or emails from clients, and how quickly they respond. Returning a phone call or responding to an email within 24 hours is ideal.
   • Ask how often the attorney will keep you updated on the status of the case. You probably don't want an attorney who doesn't communicate with you for weeks on end, or who doesn't update you on the case unless you ask.
   • If another associate or paralegal will be doing a significant amount of work on your case, ask if you can meet that person as well. Observe the atmosphere in the office to determine if people there are committed to what they're doing and enjoy working there.
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   Compare the attorneys you interviewed. After you've finished your initial consultations, create a basic chart that will allow you to assess the attorneys you interviewed. The chart gives you the ability to visually identify the best attorney for you based on factors you choose.

   • You may already have an idea in your mind of the attorney you like the best. Don't be afraid to go with your gut.
   • Keep in mind that you need to have a close relationship with your attorney so you can talk about the instances of discrimination with them and be completely open and honest about the situation.
   • Depending on the discrimination you've experienced, this may involve discussing matters that are sensitive or painful for you. For this reason, it's important that you feel comfortable and can trust the attorney you choose.
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   Sign a retainer agreement. Even if you're hiring your discrimination attorney under a contingency fee agreement, you still should have a written retainer agreement. The agreement will set forth the terms and conditions of the attorney's representation and outline how costs and fees are assessed.

   • Most discrimination attorneys work on contingency, but some do not. Others may have a hybrid agreement, in which you must pay a flat amount upfront to cover initial costs, then the attorney takes a percentage of any award or settlement you receive.
   • Have the attorney go over the agreement with you, and make sure you understand everything in it before you sign it. If you're paying your attorney a retainer, make sure the agreement outlines specifically what costs that amount will cover.
   • If you're paying your attorney by the hour, the written agreement should include a breakdown of costs and fees, and when you will be billed by the attorney.
   • Don't be afraid to ask questions or speak up if there's something about the agreement you don't like.
   • Once you sign the agreement, get a copy of it for your own records. Litigation of your case could take more than a year, and you may want to refer to the agreement again.
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Part 3

Part 3 of 4:

Initiating Your Lawsuit

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   Receive a right-to-sue letter. If the EEOC or your state agency is unable to resolve your charge, they will send you a letter confirming that you have exhausted all administrative remedies and have the right to file a lawsuit in federal court.

   • Make a copy of the letter for your own records and give the original to your attorney.
   • A copy of your right-to-sue letter must accompany your complaint so the court knows that you're eligible to file a lawsuit.
   • If you haven't received a right-to-sue letter yet and the EEOC has been investigating your case for more than 180 days, talk to your attorney. You may have to request a letter from the EEOC before you begin your lawsuit.
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   Draft your complaint. The complaint is a court document that you must submit to the court to initiate your discrimination lawsuit against the labor union. It includes factual allegations that, if proven, constitute a violation of federal anti-discrimination law.

   • Your complaint also must include a specific claim for damages. Typically you're asking for an amount of money, but your damages also may include non-monetary things.
   • For example, if you were denied membership in the union for a discriminatory reason, you may be seeking membership in the union as part of your damages.
   • Your attorney will draft your complaint. Make sure they go over it with you before they file it. Everything in the complaint should be true and accurate to the best of your knowledge.
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   File your complaint. Once your attorney has finalized your complaint, they will take it to the clerk of the federal district court that has jurisdiction over your discrimination case. In federal court, the complaint also may be filed electronically.

   • To initiate your lawsuit, you must pay filing fees of $400. Typically your attorney will pay these fees and add them to the costs of your lawsuit.
   • If you have a contingency-fee agreement with your attorney, you won't be responsible for these costs unless you win your case or receive a settlement.
   • The court clerk will give your case a unique case number and assign it to a judge. Your attorney typically will discuss this with you, particularly if they have past experience with this judge or know the judge's reputation.
   • Make sure you receive a file-stamped copy of your complaint to keep for your own records. Keep all your court documents together with your EEOC forms and any other information you have concerning your case.
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   Have the labor union served. After your complaint is filed with the court, a copy must be given to the labor union so they have notice of the lawsuit against them. This must be done using the legal "service of process" so you can provide the court with proof that the labor union knew about the lawsuit.

   • The labor union will have an attorney or specific person listed as its agent for service of process.
   • Federal court cases typically are served by paying a small fee to a U.S. marshal to hand-deliver the documents to the labor union.
   • Your attorney also may serve the documents using certified mail with return receipt requested.
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   Receive the labor union's response. After the labor union is served with your complaint, they have a limited period of time to file a written answer. In addition to the written answer, you also may expect the labor union to file a motion to dismiss.

   • Technically, you may be eligible to win your lawsuit by default if the labor union fails to file a written answer by the deadline. However, you shouldn't expect this to happen.
   • Most of the time, the labor union will deny all of your allegations and file a motion to dismiss based on your failure to state a claim.
   • Your attorney will talk to you about the motion to dismiss. The court will hold a hearing on the motion that typically you will be expected to attend.
   • Your attorney also may want you to testify at the hearing on the motion.
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   Consider any settlement offers. Provided you're able to overcome any motion to dismiss, the labor union typically will make a settlement offer. Your attorney will advise you on the offer, but it's your decision alone whether to accept or reject it.

   • When evaluating a settlement offer, take into consideration the time and effort it will take to pursue your case to trial.
   • The first settlement offer typically will be significantly less than the amount you've demanded in your complaint.
   • Sometimes a counter-offer is better than simply rejecting a low offer out of hand because it signals to the labor union that you're willing to negotiate.
   • Your attorney also may discuss with you the possibility of using mediation to arrive at a mutually agreeable settlement of the case.
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Part 4

Part 4 of 4:

Litigating Your Case

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   Take part in discovery. If initial settlement discussions fail after receiving the labor union's response, court proceedings will start. The first phase of litigation is discovery, which is a time when both parties can ask each other for information about the case. The information you receive and hand over will help the parties prepare for trial. During discovery you will collect facts, interview witnesses, find out what the other side is going to say, and determine how strong your case is. In general, you will be able to use the following discovery tools to achieve your discovery goals:

   • Depositions, which are formal in-person interviews with parties and witnesses. These interviews are conducted under oath and answers can be used in court.
   • Interrogatories, which are written questions posed to witnesses and parties. The answers must be given under oath and answers can be used in court.
   • Requests for documents, which are written requests to the other party asking them to hand over documents you could not otherwise obtain. For example, you might request internal memos, policy handbooks, email exchanges, and text messages.
   • Requests for admission, which are written statements the other party will have to admit or deny. These requests help narrow the focus of litigation by figuring out exactly what is in dispute.
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   Oppose a motion for summary judgment. Once discovery concludes, the defendant will likely file a pretrial motion for summary judgment. If successful, the defendant will end the litigation and the judge will immediately rule in their favor. To be successful, the defendant will have to convince the judge that there are no material factual disputes and that they are entitled to judgment as a matter of law. In other words, the judge will need to be convinced that, even if they made every factual assumption in your favor, you would still lose the case.

   • You can defend against this motion by filing a response. Your response will need to provide evidence and affidavits that tend to prove that factual disputes do exist. If the judge agrees with you, the litigation will continue.
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   Attempt to settle again. If you make it past summary judgment, you should try to settle your case a second time. Most labor unions will not want to spend the additional time and money necessary to go to trial. Additionally, because you have gone through discovery and summary judgment, the labor union will likely know the strength of your case. Start by approaching the labor union informally. If informal discussions fail, attempt mediation or non-binding arbitration.

   • During mediation, a neutral third party will sit down with you and the labor union to try and find unique solutions to your disputes. The mediator will not inject their own opinions and will not take side.
   • If mediation fails, you might submit to non-binding arbitration. During non-binding arbitration, a judge-like third party will hear both parties present their cases. At the end of these presentations the arbitrator will draft an opinion and take sides. If both parties agree with what the arbitrator says, they can agree to bind themselves by the opinion.
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   Go to your final pretrial hearing. If settlement discussions fail, you need to prepare for trial. As a final step in the preparation process, you will need to attend a trial scheduling hearing with the labor union and the judge. At this hearing, the judge will put together a schedule for the trial, which will include what issues will be tried. Make sure you bring up every issue you want to advance during trial. If you forget to bring up an issue, it might not make it on the schedule and you might not be able to argue it.
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   Attend your trial. When your trial date arrives, your lawyer will argue your case in front of a judge and possibly a jury. During your case presentation, your lawyer will submit physical evidence and question witnesses about your case. The defendant will then have an opportunity to present their case. When the trial is over, the fact-finder (i.e., the jury or judge) will consider all of the evidence and make a determination about who should win. If you win, the labor union will be responsible for paying damages. If you lose, the labor union will not be found liable.

   • Fortunately, if you lose, you might be able to appeal the decision to a higher court. During an appeal, your lawyer will argue that the trial court made some mistake of law that caused you to lose. If you think an appeal is an option, talk to your lawyer.
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