(HR) The dilemma of writing your own EEOC position statement

An employer receives its first charge from the Equal Employment Opportunity Commission (EEOC) alleging workplace discrimination. The employer is immediately irritated because the employee who filed the charge deserved to be terminated. The company quickly determines that it has no insurance that covers the situation, so a representative calls the EEOC investigator identified in the charge documents and asks, “Do we need to hire an attorney for this?” The EEOC investigator politely explains, “No, you don’t need an attorney. You can just work with me to provide the information I’m asking for.” Let’s look at some of the reasons the EEOC investigator may not want you to retain legal counsel. 

Information given to EEOC isn’t confidential

An EEOC investigator would be totally correct in telling an employer that there’s no requirement that a licensed attorney must respond to a charge of discrimination. The employer is allowed to respond on its own, or it could hire some type of HR consultant. Whether to hire outside legal counsel when you’re faced with an EEOC charge requires an understanding of the role of the position statement in the EEOC charge process.

The charge will be assigned to an EEOC investigator who probably has dozens of similar charges on his desk. The employer has been invited to respond and provide certain information in a position statement. The initial deadline for the position statement is often quite short—e.g., less than 30 days.

The position statement will be confidential within the EEOC until the agency closes its file and issues a right-to-sue letter to the employee. After the right to sue has been granted, the employee is allowed to see the information submitted by the employer. If he decides to proceed with litigation, almost the entire EEOC claim file, including everything provided by his employer, will be handed over to the employee pursuant to a subpoena. You should understand that anything you send to the EEOC could eventually find its way into the hands of the employee and his attorney.

When legal counsel isn’t involved in responding to an EEOC charge, there’s a significant risk that the employer will make admissions that will later be held against it. If you admit to discrimination in your response, the EEOC may treat the charge differently under its own internal claims- handling guidelines. That may increase the chances of EEOC litigation against your company, something no employer wants to face. One aim of outside legal counsel is to avoid making any inappropriate admissions to the EEOC in responding to a charge.

There’s no substitute for experience

Under its own internal regulations and by law, the EEOC’s investigation is limited to obtaining information reasonably related to the allegations in the charge. Nonetheless, EEOC investigators will more than occasionally request information to which they should not be allowed access, such as employees’ Social Security numbers. Or an investigator may try to push for employee interviews that are overly burdensome or disruptive to your operations. And what if there’s no suitable conference room in which to conduct confidential interviews on-site? Outside legal counsel can push back against unreasonable information requests from the EEOC. An employer going it alone may not know or understand the limits of the agency’s jurisdiction.

Finally, an employer without experience in handling EEOC charges may not understand the severity of a specific situation. It’s still true that a significant majority of EEOC charges are dismissed by the agency and no lawsuit is filed by the employee. However, some charges may involve more risk or complexity (e.g., when the charging party is still an active employee, raising the specter of retaliation). Employers may not recognize that some allegations, such as sexual harassment involving physical contact, are severe enough to merit immediate consideration of early settlement or mediation. An experienced employment attorney can tell you when it’s time to settle the case and move on or when it’s time to fight.

Bottom line

You can respond to an EEOC charge on your own without hiring outside legal counsel, and you may even achieve the same result an experienced employment lawyer could reach. The decision about whether to retain legal counsel to respond to an EEOC charge has various strategic considerations. By no means should it be based on the gentle reassurances of the EEOC investigator requesting information from your company.

Source: HR Hero line