Getting a charge from the U.S. Equal Employment Opportunity
Commission (EEOC) isn’t the way most HR professionals want to start the day.
The number of disability discrimination and retaliation charges has been on the
rise, and charges based on age, gender and national origin discrimination also
have increased. No matter what the allegation is, every company should respond
promptly, thoroughly and effectively to an EEOC charge.
First Steps
First impressions can be lasting. Make sure you don’t ignore
a charge. In addition, preserve relevant documents, keep information about the
charge confidential and notify your insurer.
Never ignore the charge. While a charge does not mean that
the EEOC has determined your company or an employee engaged in discrimination,
it does mean that there is some basis for an investigator to look into it.
Review all EEOC paperwork and make note of deadlines. If
needed, request additional time as soon as possible. The investigator likely
will ask you to submit a statement of position that allows you to tell the
company’s side of the story. You also may be asked to respond to a Request for
Information (RFI) that could require you to supply copies of policies,
personnel files and other relevant information.
Preserve relevant documents. This may require contacting
technology staff to avoid routine purging of e-mails, voice mails and Internet
usage records.
Guard against retaliation. If the charging party is still
employed, ensure that no retaliatory action is taken. Remind managers,
supervisors and anyone else involved with the allegation about the company’s
anti-retaliation policy.
Keep it confidential. Information about the charge should be
shared on a strict need-to-know basis. Instruct key personnel that they should
discuss the matter only with you or the person coordinating the response.
Consider whether you or an attorney who specializes in
employment matters should respond to the EEOC.
Notify your insurer. Policies often require prompt notice of
claims, and charges involving discrimination are often included in claims.
Failing to inform your insurer could lead to a denial of coverage.
Internal Investigation
Before you can respond to the EEOC, you need to figure out
exactly what happened. Having an experienced employment law attorney conduct or
supervise an internal investigation can be helpful. The attorney can ensure
that relevant facts are gathered, appropriate documents are reviewed and proper
recommendations are made.
If an attorney conducts the investigation, be sure to
discuss which materials and discussions may be treated as confidential or
privileged. An early and thorough evaluation is important to gauge potential
liability exposure and help avoid surprises if the matter goes to litigation.
It also gives you the opportunity to consider the value of early mediation.
The investigation should entail thorough interviews with all
relevant witnesses, including managers, supervisors, decision-makers, similarly
situated employees and HR staff. The interview is a good time to ask those
involved to refrain from discussing the charge or the investigation with
co-workers or anyone outside the company, in order to maintain the integrity of
the investigation. However, don’t prohibit your employees from discussing the
investigation or issue a threat of potential disciplinary action, as this
practice has recently been subject to increased scrutiny by the EEOC due to its
potential "chilling effect" on an employee’s right to complain about
discrimination.
During the investigation, you will also want to review all
relevant documents—not just the charging party’s personnel file but also the
files of supervisors and others involved. If applicable, you may need to review
the employee’s medical file. Be sure to go over the relevant policies and
procedures and gather all signed acknowledgment forms. Finally, collect any
grievance files, internal complaints and information about other investigations
involving the charging party.
Position Statement
A well-drafted position statement with evidence,
documentation and witness statements will help accelerate the investigation and
could limit requests for additional information. Make the EEOC investigator’s
job as easy as possible by providing a clear, concise and complete response.
Keep in mind that your response could be shared with others.
Some EEOC investigators will forward a copy of the position statement to the
employee or the employee’s attorney, and EEOC attorneys may also review the
file. If the investigation leads to litigation, your position statement could
be used as evidence.
Start strong with an introductory paragraph that denies any
discrimination or retaliation and provides a brief summary of the company’s
position. Example: "This letter responds to the charge of discrimination
filed on (date) by (name of charging party), in which the charging party
alleges (he or she) was discharged because of (sex, race, age, religion, etc.).
The company strongly denies the charge and maintains that there is no evidence
to support the allegations. As explained in more detail below, the charging
party was discharged because of (stealing, excessive tardiness, absenteeism, etc.)."
Next, explain your company’s business. The EEOC investigator
probably knows little or nothing about your business, and some background will
set the stage for your explanation of any action taken. For example, if the
company provides a courier service where delivery is expected on certain days
and times, and a driver was fired for excessive absenteeism or tardiness, the
background information will provide context as the investigation moves forward.
Spell out your company’s EEO policies and procedures. This
demonstrates your commitment to a workplace free of harassment and
discrimination. Explain how your company stresses the importance of following
the policies and how the information is distributed to employees. Provide a
copy of the acknowledgment form signed by the charging party. With harassment
claims, this is especially helpful if the charging party failed to follow
internal company procedures for reporting harassing behavior. Rather than simply
stating that you are attaching the policies to the position statement, describe
the relevant sections clearly and concisely so that the investigator does not
have to spend time poring over lengthy exhibits.
Explain the charging party’s employment history, including
all facts that are relevant to your defense of the charge. Doing so in
chronological order is generally the clearest way. Remember, if you are
attaching a job description and responsibilities, also describe them succinctly
in the position statement so the investigator is not required to sort through
paperwork to find the relevant information. Explain the reasons for the
company’s actions by addressing each allegation and leaving no unanswered
questions. Address any "bad facts" with the best explanation you
have, but be careful not to exaggerate or stretch the truth. You may want to
include attendance records, e-mails and reports that support your explanation.
Again, you want to be thorough and make the investigator’s job as easy as
possible, which could limit requests for more information.
The position statement is also where you should provide
evidence of consistent past decisions that demonstrate nondiscrimination. To
disprove a charge of discrimination, explain why similarly situated employees
were or were not treated the same way as the charging party. You may want to
include demographics of the company’s workforce, as well. If an employee is
complaining of racial discrimination, be sure to point out that workers of
another race were treated in a similar way. Or, if an employee complains she
was terminated for taking maternity leave, you will want to include information
about other employees who have taken maternity leave and returned to work.
If you are working with an attorney, he or she may suggest
including other possible legal defenses to the charge, such as the "same
actor" defense or the "after-acquired evidence" defense.
Remember that EEOC investigators are generally not
attorneys. While they will pay some attention to legal citations that you or
your attorney include in the position statement, it is likely that they will be
more receptive to references to the EEOC Compliance Manual as additional
guidance.
Finally, wrap up your position statement with a firmly
stated conclusion that the charging party’s claim is not valid and that the
company acted fairly. Request that the charge be dismissed. Carefully review
what you have compiled for accuracy and completeness. Remove all technical
jargon unless it is clearly explained in plain language.
Always use respectful language when referring to the
charging party. Do not include anything in the position statement that you
would not want quoted at a trial. Before sending the position statement to the
EEOC, have key managers involved with the events review it. Then take a fresh
look at it after any revisions are made. Ask yourself if a neighbor, friend or
potential juror would find the response persuasive and thorough.
Charge Trends Over the past decade, changes in the number of
EEOC charges filed have varied based on the type of charge:
Race and gender
charges have remained about the same.
Disability, age,
religion and national origin charges have risen.
Retaliation
charges have had the biggest increase.
Respond to the RFI
The RFI may ask you to submit copies of personnel policies,
files and other relevant information. If you think the RFI is too broad, talk
to the EEOC investigator about narrowing the scope of the request. Be nice, but
remain firm on important points. Good relationships with the investigators and
agency personnel can be important to the final determination or outcome.
If the EEOC asks for information and you don’t provide it,
the agency can (and likely will) subpoena it. You can challenge the scope of a
subpoena, but the EEOC will likely prevail if the information it seeks is
relevant to the investigation. However, an investigator will usually be willing
to narrow the scope of an information request if you contact him or her in a
timely manner and explain your position in a polite and reasonable way. Also
remember that it may be appropriate to simply include the requested information
in the position statement.
Mediation
At the start of an investigation, the EEOC investigator will
let you know whether the charge is eligible for mediation at no charge. You can
also call the investigator and ask about the early-mediation option. Mediation
is entirely voluntary, and both parties must agree to participate. Early
mediation can provide a faster and cheaper resolution by avoiding a lengthy
investigation and possible costly litigation.
Mediators are neutral third parties and are bound by
confidentiality rules; they are not allowed to provide information about
mediation discussions to the investigators.
Mediation is an informal resolution process, not a
fact-finding mission. It is usually completed in one session that lasts from
one to five hours. An advantage of mediation is that you can retain some
control over the outcome, including obtaining a global release of all potential
claims against your company. If mediation leads to an agreement, the EEOC will
close the file. If it does not lead to an agreement, the charge will be sent
back to the investigator for investigation. However, you will not be required
to provide a position statement until the mediation process is over.
Settlements can occur at any time during the investigation,
and they generally involve no admission of liability. If the parties, including
the EEOC, reach a voluntary agreement, the charge will be dismissed. You may
want to consider attempting an early settlement if the charge falls under any
of the EEOC’s hot-button topics. Currently, these include employment screening
based on arrest or conviction records, credit history, or unemployment status
(due to the potential disparate impact that these types of screening could have
on minority groups). Other enforcement priorities are equal pay; harassment
claims; caregiver and pregnancy discrimination; and "systemic bias"
cases in which the alleged discrimination has a broad impact on an industry,
profession, company or geographic area.
Tick, Tock
According to the EEOC, it takes 182 days on average to
investigate a charge. Delays in responding to agency requests can extend this
time. Once an investigator contacts you for information, make every effort to
respond promptly, accurately and thoroughly. Being helpful, responsive and
professional from the start can make all the difference in the final outcome.
Melanie Pate and Mary Ellen Simonson are partners at Lewis
and Roca LLP in Phoenix. They can be reached at MPate@LRLaw.com and MSimonson@LRLaw.com.
Source: SHRM
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