One of the most urgent and nuanced challenges that employers and HR departments face is responding to a charge against the company for employment discrimination. The claimant might be a current or former employee, or an applicant alleging discrimination, harassment, or another wrongful employment action.
These situations can be scary, but a bulk of that fear comes from what is unknown. Knowledge is power, and being able to anticipate your potential obligations and the possible outcomes is paramount to successfully navigating these highly sensitive scenarios.
This article provides an overview of EEOC charges. It is not intended to be, and should not be construed as, legal advice for any particular situation. It should go without saying, but when it comes to sensitive legal situations like discrimination claims, always consult with counsel on the best course of action.
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What is the EEOC?
This article addresses appropriate responses to a charge via a letter from the U.S. Equal Employment Opportunity Commission (EEOC), a federal agency that administers and enforces civil rights laws against workplace discrimination. The EEOC investigates charges of discrimination based on a job applicant’s or a current or former employee’s race, color, national origin, religion, sex (including gender identity and sexual orientation), pregnancy, age (40 or older), disability, and genetic information.
They also investigate charges of retaliation against individuals for reporting, participating in, and/or opposing a discriminatory practice. More EEOC claims against employers are for retaliation rather than an adverse action based on any single one of the protected characteristics mentioned above.
If an applicant or current or former employee files a claim against your company, you’ll receive a letter from the EEOC. Below, find some general best practices on what actions to take once you have that letter in hand.
Preparing to Respond to an EEOC Claim
Do not ignore a charge.
One reason this article exists is so that you aren’t frozen by inaction due to a lack of knowledge as to how to proceed. Now is the time to take action, because the fact that you received a letter only means that the EEOC has deemed the case worthy of investigation based on the information they’ve received from the applicant or current or former employee. Take note of any deadlines and request additional time, if needed, as soon as possible.
Do not retaliate against the complainant.
Remind managers about your company’s anti-retaliation policy. For terminated employees, your point of contact is now the EEOC. Attempting to resolve the matter outside of the EEOC’s proceedings can only hurt your chances of an amenable resolution. Review the paperwork and any deadlines you’re subject to. If you require additional time, request it immediately.
Preserve relevant documents.
If your IT department regularly clears email, voicemail or internet search records, instruct them to avoid doing so in any way that could eradicate information or communication records related to the case.
Information about the charge, or even that it exists, should be granted to as few individuals as possible and on a need-to-know basis. Usually, an HR manager or director will take the lead under the oversight of the head of HR and a member of the executive team. Even if you have veteran HR professionals on staff, always consider engaging an attorney specializing in employment law to advise your HR department as to an appropriate response.
Notify your EPLI policy carrier.
Most policies demand prompt notice of claims (and even potential claims, if you suspect that an EEOC notice might be arriving soon). Failing to do so may jeopardize your coverage, which could lead to unnecessary and potentially disastrous financial loss to your organization.
Related Article: Does My Business Need EPLI Insurance?
Figure out what happened.
Before you can respond to the charge, you need to figure out exactly what happened, which requires you to conduct a factual investigation into the allegations. The evaluation can help gauge potential liability exposure and gives your finance team the time to prepare for the worst, should the issue go to settlement or litigation.
Interviews with all relevant parties will likely comprise the bulk of the investigation, which might be held with managers, colleagues, and witnesses. Again, discretion is paramount, because you shouldn’t be advising the interviewees not to speak about the interview and its contents. The EEOC has been exercising increased scrutiny over such cases where a “chilling effect” has been passed down by the organization.
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“In many cases, the organization may choose to resolve a charge through mediation or settlement,” according to the EEOC. An investigator will be assigned to your case, and should let you know whether the case is eligible for mediation. Most are.
Mediation differs from investigation in that it is an informal resolution process, and is usually completed in a single session of one to five hours. Both parties must agree to mediation in order for it to occur, and is a best-case scenario at this point because it can save the company significant costs in investigation or (knock on wood) litigation. If an agreement cannot be reached by mediation, the next step is investigation.
“Employers are encouraged to present any facts that they believe show the allegations are incorrect or do not amount to a violation of the law. An employer's input and cooperation will assist EEOC in promptly and thoroughly investigating a charge,” says the EEOC.
Investigations involve gathering information and evidence from documents, records, and people. The average EEOC charge investigation can take 10 months to complete. In almost all cases, delays will be caused not by the complexity of the case but by the company’s untimely or lack of cooperation. It might be helpful to know that the EEOC has the authority to subpoena any relevant information you don’t willingly provide.
An investigation will have one of three outcomes:
- Dismissal. The charging party then has 90 days to continue to pursue the allegations, and file a lawsuit in federal court.
- Conciliation. The EEOC determines that there is reasonable cause to believe that discrimination has occurred, and will invite the parties to resolve the charge and award damages through an informal process called conciliation.
- Litigation. Should conciliation not succeed in resolving the charge, the EEOC has the authority to pursue the charges on the individual’s behalf and file a lawsuit in federal court.
At any point during the investigation, the parties can agree to settlement. Generally, a settlement does not mean an admission of liability by the company. An employment attorney will be able to advise your organization as to whether you should consider settlement, and what to offer.
This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, legal or tax advice. If you have any legal or tax questions regarding this content or related issues, then you should consult with your professional legal or tax advisor.