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Here is how HR can help prevent the missteps that could cost your company big in court.
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Make a good first impression.
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 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.
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.
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:
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.
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.
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.
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