Prepare for EEOC Onsite Visits

Allen Smith, J.D. By Allen Smith, J.D. September 26, 2018
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HR professionals whose companies have pending Equal Employment Opportunity Commission (EEOC) charges against them should be ready for the possibility of an EEOC onsite visit and should turn the visit into an opportunity to show how the company complies with anti-discrimination laws.

A site visit to follow up on an EEOC charge signals that this is not a run-of-the-mill investigation, noted Barry Hartstein, an attorney with Littler in Chicago. It means the EEOC has a heightened interest in that charge. Onsite visits are particularly likely if more than one person has filed charges with the EEOC on the same issue in the same location.

To reduce the chances of receiving an onsite visit, employers should provide a detailed position statement, or response to the EEOC's charge, with supporting documentation and should answer EEOC requests for information, said Scott Fanning, an attorney with Fisher Phillips in Chicago.

The documentation might include e-mails showing misconduct by the charging party, attendance or punctuality violations, evidence of poor work performance, or financial information on the reasons for a layoff, said Jack Schaedel, an attorney with Scali Rasmussen in Los Angeles. But, he cautioned, "Appearing overly eager to avoid an onsite visit might be counterproductive."

The EEOC often tells an employer that it will make an onsite visit on a specific date. The company should feel free to ask an investigator not to schedule the investigation on a busy day or when witnesses might have deadlines, he said.

Advance Preparations

Employers that receive notice of an onsite visit should review the charge, the company's position statement and any relevant employment records with management witnesses to minimize the chances of managers being taken by surprise, Fanning advised. Management also should be reminded about relevant anti-discrimination and anti-retaliation policies. Don't create the impression that a manager will be disciplined for disclosing information to the EEOC, as this would almost certainly violate the company's anti-retaliation policy, he noted.

Employees should be told that it is OK to answer "I don't know" to questions if they really don't know, said Brian Markovitz, an attorney with Joseph Greenwald & Laake in Greenbelt, Md. "Employees also should not be so prepared that they sound like robots," he added. "Reviewing documents and position statements before [the visit] can help refresh recollections. It is a balance. You want them to know the facts but not seem stiff."

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Hartstein recommended that an attorney meet with company representatives to preserve the attorney-client privilege. He also recommended that counsel be proactive in preparing an opening statement that provides an overview of the company and reviews key facts addressing any concerns of discriminatory conduct.

"Know your facts and strengths, and review them with the witnesses," he said. "This is unlike a deposition in which you only respond to what is asked. This may be the only opportunity to highlight the strengths of the company's position."

Hartstein recalled one onsite visit involving a charge of systemic discrimination under the Americans with Disabilities Act where the company prepared a slide presentation on the organization with an overview of its culture. The company also supplied key documents on how it was proactive in identifying accommodations and described its accommodations hotline. The good will generated by the onsite visit halted a high-risk investigation. "Ultimately, the investigation went away," he said. "A few minor issues were resolved."

The EEOC likely will ask HR professionals when they first learned about the discrimination claims and how they responded. HR also should be ready to describe the company's internal investigation, if there was one, and to summarize the findings, Markovitz noted.

In addition to background facts about the charging party, the challenged actions and the company's defenses, the EEOC might ask HR about policies guarding against what the charging party alleged, Schaedel said. HR also may be questioned about training the company has provided to management and front-line employees. If there hasn't been any training, the company might at least have it scheduled by the time of the EEOC's visit, he stated.

Plan the route that will be taken during the EEOC's tour of the facility. It should cover any areas related to the charge but avoid areas where the tour would disrupt work, Fanning said. Conduct a walk-through of the route before the tour to ensure that any required postings are visible and that any offensive items are removed.

Tips for Onsite Interviews

A company representative typically will be able to attend interviews only of management witnesses, Schaedel noted.

If the investigator is taking notes during the interviews that mainly seem unfavorable to the company, HR might ask the investigator whether he or she would like to hear about certain topics the company wants the EEOC to know about, such as the charging party's misconduct or performance issues.

Regardless, HR should take detailed notes of the interview to preserve a complete record of the witness statements, Fanning said. The EEOC investigator often will prepare an affidavit for the witness to sign. Review the affidavit carefully and make sure it is accurate and does not omit important facts.

Hartstein said an EEOC investigator may record the interviews and the employer should consider doing the same. Trying to prevent the investigator from recording usually is not a battle worth fighting, he said.

Sometimes, managers who weren't present during the interviews try to question witnesses afterward.

The EEOC likely will advise line employees not to talk to company representatives about the investigations, Schaedel said, so managers "should be careful not to interrogate the employees or give the appearance that failure to disclose the content of the investigation could lead to discipline."

Follow-Up

EEOC onsite visits usually last a day, Hartstein said. It's a good idea to provide follow-up communication to the EEOC investigator that highlights the main points the company wanted to make at the visit, plus any additional documentation.
The agency finds reasonable cause to believe that discrimination occurred only "in a small number of cases and litigates an even smaller number," he noted. "Arm [EEOC investigators] with the facts about why this is a case not worth pursuing."

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