Your company just received a notice from the Equal Employment Opportunity Commission (EEOC) stating that a charge of discrimination and/or harassment has been filed against the company. What do you do next?

First of all, don’t panic. A charge of discrimination is not a conclusive determination that the company violated any laws; rather, it is simply a complaint (usually made by a former or current employee) that the EEOC then investigates. That being said, all EEOC charges should be taken seriously.

Having a company protocol for how to handle and respond to such complaints will go a long way in reducing future legal exposure. The following are some important steps employers should in response to a charge of discrimination and/or harassment.

Review the Charge

Carefully read through the entire charge of discrimination and/or harassment to understand what type of complaint is being made, what employee(s) are allegedly involved, and when the alleged harassment and/or discrimination took place. Next, the company should figure out what it is being asked to do and the deadline that is given for responding to such requests or providing a response to the charge.

Preserve Evidence

All files, documents, emails, etc., relating to the allegations in the charge should be collected and preserved (both hard and electronic/digital copies). If the company has an in-house legal department, they should be informed immediately and may want to issue a company-wide litigation hold, suspending all document deletion until the investigation is complete.

Any automatic email deletion applications or programs on company computers should be turned off. Failing to preserve evidence (whether intentionally or inadvertently) can lead to spoliation issues if litigation ensues. This would mean that the judge or jury is permitted to infer that any deleted or destroyed documents would have been useful to the employee’s claims.

In addition, the EEOC’s recordkeeping regulations obligate companies to keep all employee records for a minimum of one year following any termination of such employee. Thus, companies have an obligation to maintain such records for that time period in the event that a dispute arises surrounding an employee’s termination.

Consider Getting a Lawyer Involved

Companies are not required to be represented by counsel during the EEOC’s investigative process. Many large companies have in-house counsel or human resources-trained professionals who will be able to respond to the EEOC charge. However, depending on how complex the claims are, companies may wish to consult a lawyer, especially if there is high potential for liability.

Typically, if the charging party (the individual who filed the EEOC charge) has an attorney, the company should seek representation by an attorney as well. Even if the company has an in-house legal department, it may be a good idea to hire outside counsel to conduct the workplace investigation, depending on the seriousness of the allegations and the employees involved.

Conduct an Investigation

Prior to drafting a response to the charge of discrimination, the company must conduct an investigation into the charging party’s allegations. Ideally, this investigation would have already occurred if and when the employer was first put on notice of the employee’s complaints via some formal or informal company complaint procedure. However, if the company was unaware of any employee complaints or failed to conduct an investigation prior to receiving the charge, now is the time it must be done.

During the investigation the company should collect documents relevant to the allegations in addition to interviewing key witnesses. The individual conducting the investigation should be an uninvolved, well-trained employee with experience handling internal investigations (or an outside qualified third-party/attorney).

It is important to avoid any perception that the investigator is biased. This investigation should be completed promptly but thoroughly, because any inaccurate information included in a position statement may be used against the company in a future trial.

Respond in a Timely Manner

Do not simply ignore the charge of discrimination – even if the company believes it is patently false or frivolous. Most of the time employers will be asked to respond to the charge of discrimination by providing a position statement to the EEOC, as well as responding to a request for information (RFI).

The position statement is the employer’s opportunity to explain the non-discriminatory or non-retaliatory reasons for taking certain disciplinary or adverse employment actions against the charging party. Companies generally have 30 days to gather documents and submit such responses; an extension may be granted upon request, however.

Employers who wish to seek an extension (i.e. if key witnesses are on vacation or the company needs more time to conduct a full investigation) should promptly do so rather than waiting until the last minute. If the company fails to comply with EEOC requests during the investigation process, the EEOC will likely issue a subpoena for such information. Failing and/or refusing to comply with a subpoena from the EEOC is considered contempt of court and can result in a lawsuit, fines, and even jail time.

When drafting a position statement, keep in mind the facts must be 100% accurate because any discrepancy or changes in position can later be used in court to show that the reasons for taking action against such employee were merely pretext (i.e. a false motive or excuse given to mask the underlying discriminatory intent).

The EEOC provides guidance to employers about what it is looking for in an effective position statement. It is important to remember that the employer’s position statement may be provided to the employee for rebuttal. It is in the employer’s best interest to provide an effective position statement that focuses on the facts, rather than the legal argument.

Employers may also be required to submit a response to an RFI as an attachment to the position statement. In doing so, employers should reply to all questions asked by the EEOC and provide information and documents that are relevant to the allegations in the charge, such as an employee handbook or policies, personnel files (including any write-ups of the complainant employee), etc. The EEOC may also request demographic comparator information from the company regarding employees who were disciplined or terminated for similar behavior.

Consider Mediation

Mediation is an alternative dispute resolution process that gives the parties an opportunity to come to a mutually agreeable resolution with the assistance of a neutral mediator. The EEOC encourages early participation in its mediation program to resolve conflicts. EEOC mediation is completely voluntary. If both parties agree to take part in mediation, a session will be scheduled with a trained mediator who encourages and facilitates settlement discussions.

The mediation program offered by the EEOC is free to the parties and all information disclosed to the mediator is kept confidential and not shared with the EEOC investigator. Generally, EEOC mediation is beneficial to attend because companies can get access to free discovery, it can save the parties a lot of time and money that will be expended if litigation ensues, and it reveals the mindset of the employee.

Employees may be more inclined to settle for a smaller amount of money at the early stages of his or her complaint, before any animosity builds during the contentious litigation process. Thus, in situations where there is a high risk of legal liability based on the evidence, employers should not only attend mediation, but also be prepared to make a reasonable settlement offer during mediation.

Successful mediation results in the charge of discrimination and/or harassment being dismissed, while unsuccessful mediations simply continue through the EEOC investigative process.

Prevent Retaliation

Retaliation against the complaining employee or any other employees who participate in a workplace investigation is illegal. Therefore, if the individual who filed the EEOC charge is still a current employee, employers must ensure that he or she is not subject to any actions that may be perceived as punishment or retaliation for their filing of the charge.

Actions such as giving a negative performance evaluation, transferring the employee to another position, changing his or her work schedule to less desirable hours, or demoting and/or terminating the employee can all be considered unlawful retaliation if such action is taken because the employee participated in the workplace investigation or made a complaint of unlawful workplace practice (e.g. with the EEOC).

Be Patient

As a federal agency, the EEOC is backlogged. Sifting through all of the charges of discrimination and responses is a long, slow process. Per the EEOC’s website, the average time to investigate and resolve a charge is 10 months. Any delay on the part of the company in submitting a position statement or responding to the request for information only prolongs such time estimates.

Settlement discussions are permitted (and encouraged) throughout the EEOC investigative process. However, if mediation and settlement attempts fail, a charging party can request a Right to Sue letter from the EEOC after the EEOC has had 180 days to investigate the charge. Once the EEOC issues a Right to Sue letter, the employee will then have 90 days to file a lawsuit to pursue his or her claims in court.

If the employee decides to do so and the complaint snowballs into a full-blown lawsuit, following the above steps can help reduce a company’s legal exposure during subsequent litigation.

For assistance with workplace discrimination, harassment or retaliation matters, contact Clouse Brown PLLC. Our attorneys are available to counsel employers and business-owners regarding federal and state employment laws and give advice in dealing with employee complaints. We also advise employees who have been discriminated or retaliated against by an employer.

Keith Clouse

About Keith Clouse

Keith Clouse is an employment law specialist with over 25 years of experience representing senior-level and C-suite executives, business owners, physicians, and corporations in complex employment litigation, arbitration, and negotiations. High-level business executives, physicians, and other professionals consistently rely on Mr. Clouse for employment law expertise and advice on employment contracts, covenants not to compete, severance agreements, equity awards, trade secret disputes, and breach of fiduciary duty claims. He is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. He can be reached at keith@clousebrown.com.

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