Charging parties should be interviewed by a legal unit attorney prior to submission of a presentation memorandum or notice of intent to file under the Regional Attorney’s redelegated authority. Where practicable, other individuals who will have significant roles in the litigation as either witnesses or claimants should also be interviewed before litigation is recommended or a notice of intent submitted.
Interviews should be conducted in person where possible, even if this requires out of city travel by either the attorney or the claimants. At a minimum a telephone interview must take place. The interview should explore the individual's basis for recovery as well as other knowledge he or she may have relevant to the suit, such as information on the respondent’s operations and employment practices and on other individual and class claims.
The attorney should also discuss with the claimant the relief to which he or she may be entitled (including the effect of any personal bankruptcy on such relief), and should obtain at least general information on backpay accrual, mitigation, and any pecuniary compensatory damages the claimant may have incurred. The attorney should discuss the standards for obtaining nonpecuniary compensatory damages and the kinds of inquiries the defendant will be entitled to make about the claimant if such damages are sought. (See the legal discussion on nonpecuniary compensatory damages in subsection D. of this section of the Manual.) A copy of the information sheet on nonpecuniary compensatory damages in the appendix that follows should be given to the claimant at the end of the interview. Although the Commission brings suit to further the public interest in preventing employment discrimination, the considerations relevant to seeking compensatory damages for a particular individual are unique to that person. Thus, claims for nonpecuniary compensatory damages should be made only for individuals who have given their express consent following a thorough discussion with a legal unit attorney regarding the possible consequences of such a claim, and who have had at least a week to think about the matter after receiving the information sheet.
Finally, the attorney should explain during the interview the Commission's public interest role in the litigation, the possibility that the Commission’s and the claimant's interests may diverge during the litigation, and the claimant’s individual suit and intervention rights, if any. In ADEA and EPA cases, the claimant should be informed that EEOC’s suit will cut off any private right of action he or she may have. See the discussion of these matters in subsection E. of this section of the Manual.
When the EEOC files a lawsuit alleging that a defendant engaged in intentional discrimination, the agency generally may seek monetary recovery for injuries which individuals suffered as a result of defendant’s unlawful conduct. The monetary relief may include what are known as "nonpecuniary compensatory damages." These are damages for intangible injuries such as emotional distress, mental anguish, inconvenience, and similar harm suffered by a victim of discrimination. The monetary relief an individual may be awarded for such intangible injuries may not exceed a specified amount that depends on the number of people employed by the defendant.
When the EEOC files a lawsuit, EEOC attorneys, in consultation with the individuals for whom the agency will be seeking relief, will determine whether these individuals have claims for nonpecuniary compensatory damages under appropriate legal standards, and if so, whether such damages should be sought from defendant. The EEOC will seek these damages on behalf of an individual only if he or she agrees that EEOC may do so.
There are a number of issues which you, as an individual harmed by defendant’s discriminatory conduct, should carefully consider before deciding whether to ask the EEOC to seek nonpecuniary compensatory damages on your behalf. First, the EEOC will have to be able to prove at trial that you suffered the injuries for which the damages are sought. This means that you must be prepared to testify in great detail at a deposition,* and possibly before a judge and jury, about the injuries you suffered. These injuries may, in some instances, relate to highly personal and private matters. For example, defendant’s unlawful discrimination may have caused marital problems between you and your spouse, or you may have sought counseling or medical treatment for emotional problems caused by the discrimination. While the EEOC trial attorney will object to improper questions, procedural rules generally permit the defendant to ask very detailed questions concerning the damages claim. Some individuals may not wish to testify about such matters, and therefore would not want to seek recovery for such injuries.
Often, your detailed testimony alone will not be enough to prove the damages and you will be asked to identify witnesses who can corroborate that you suffered the injuries. Such witnesses might include your family members, friends, coworkers, and physician or therapist. Defendant will be permitted to ask these witnesses the same kinds of questions about your personal life that it will be asking you.
Also, in some instances where such damages are sought, the defendant may be able to seek information concerning seemingly unrelated matters. You are not entitled to compensatory damages unless EEOC can prove that defendant's unlawful actions actually caused your injuries. Therefore, defendants are generally given an opportunity to prove that some other situation in your life caused the claimed damages. Based on this general rule, the defendant may be permitted to inquire into a variety of personal matters, including those involving your family, friends, and coworkers. For example, if you contend that defendant's unlawful actions caused you mental anguish and depression, defendant may be able to ask you and your witnesses about personal matters that may have caused such depression, such as family problems or illness. Defendant, however, is not permitted to delve into such issues solely to harass or embarrass you, and the EEOC trial attorney will ask the court to terminate such questioning.
Finally, depending on the type of damages claimed, defendant may be able to have the court require you to be examined by a physician designated by defendant. You would be required to respond to the physician's questions, and the examination would be disclosed to defendant and might become part of the public record in the case.
In sum, by seeking nonpecuniary compensatory damages, you and possibly your family, friends, coworkers, and physicians or therapists may be required to provide testimony concerning matters of a personal, private, or sensitive nature. The extent to which this may be required depends upon the specific damages claimed, the facts of the case, defendant’s strategy, and the court's view on these matters. The EEOC trial attorney will seek to limit such inquiries to only those the EEOC believes are permissible under the applicable rules and case law, but it is up to the judge to decide the ultimate scope of these inquiries.
Assuming you have a valid claim for nonpecuniary compensatory damages, as determined by the EEOC attorneys assigned to the case, you should very carefully consider all of the above issues in deciding whether or not to have the EEOC assert such a claim. This may include, if you wish, consulting with others who may be impacted by your decision, such as your spouse or other family members. Once you have made your decision, you should advise the EEOC trial attorney, so that he or she may include the appropriate damages claim, if any, in the EEOC’s suit. Finally, bear in mind that while a claim for these damages may generally be removed from the case as litigation progresses and the case develops, it may be difficult to add a claim for damages which was not initially included in the suit.
* Depositions are pretrial proceedings in which you are placed under oath and defendant's attorney is permitted to ask you any questions he or she believes are relevant to your claim. Your responses are recorded by a court reporter and can be introduced at trial.