DEFENSE STRATEGIES FOR HANDLING DISCRIMINATION CHARGES FILED WITH THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
by Darrell R. VanDeusen
When a company receives a discrimination charge filed with the EEOC, consider the following:
Does the employer fall within the EEOC's jurisdiction? Title VII and ADA: 15 or more employees in 20 calendar weeks in the current or preceding calendar year; ADEA: 20 or more employees in 20 calendar weeks in the current or preceding calendar year. The standard for counting is the payroll system. Remember, independent contractors do not count. Also consider whether there are other exemptions that may apply (e.g., religious or national security exemptions).
Is the charge timely? Has it been filed within 300 days of the alleged discrimination? Remember that time starts to run when the charging party is given notice of the alleged discriminatory act, not when it eventually happens. Although "continuing violation" is often alleged, it doesn't apply to the majority of charges. Continuing violations are most common in "hostile work environment" harassment and wage disparity claims.
Are there other reasons why the EEOC should decline to conduct an immediate investigation? For example, are the same allegations raised in a pending arbitration or some other impartial forum. If so, ask the EEOC to wait for that decision. Although the company ultimately may have to respond to the EEOC's information request, there is little sense in fighting two battles at the same time.
Is an early resolution of the charge a good idea? There are many reasons why either a quick settlement or a request to engage in mediation may be warranted. Is there merit to the charge? Are the company's witnesses available and, if so, are they convincing? Do the potential defense costs outweigh the cost of a settlement? Obviously, investigation into the underlying facts is necessary to make the assessment, but don't rule out this possibility.
Does the charge contain allegations that the Commission considers a priority? Remember that the EEOC has established priorities for its investigations. If the charge is a "hot topic" (pregnancy or retaliation, for example) the company may have less flexibility in responding to information requests.
Prepare the statement of position with care. Conduct a thorough investigation into the allegations raised in the charge. Learn the good, the bad, and the ugly, not just enough to provide a brief explanation of what happened to the charging party. Nothing destroys an employer's credibility faster (and potentially shouts "pretext" louder) than to later change the original explanation because "new" facts have been uncovered.
Make the statement of position easy to read and understand. The EEOC investigator assigned the charge probably has over 80 other pending charges to investigate. In most cases the mission of the employer's representative should be to provide the explanation and supporting documentation in a way that minimizes the need for the Commission to later ask for additional information. Try to include some evidence that the charging party was treated in the same manner as similarly situated employees.
Try to be helpful. Sure it's an adversarial process, but be civil and responsive. Remember that the majority of the charges filed with the EEOC are dismissed. Most employers don't want to or need to pay for needless argument. They just want the matter resolved in their favor as cost effectively as possible. Building a reputation at the EEOC as an employer's representative who is difficult to work with won't necessarily advance your client's cause.
What do you do with a finding of reasonable cause? An attempt will be made to conciliate. Be prepared for a request for "full relief," including compensatory damages up to the limits provided under 42 U.S.C. § 1981a. But a finding of reasonable cause doesn't mean the EEOC will take up the case if conciliation fails; a notice of right to sue may still be the result.
O.K., you've been sued -- now what? Was the lawsuit was filed within 90 days of the receipt of the notice of right to sue? That jurisdictional requirement must be met. Immediately request a copy of the investigative file under the Freedom of Information Act (FOIA). Remember that employers cannot get the file unless and until litigation has commenced. If you think that the Commission has withheld too much of the investigative file, you may appeal to the EEOC's national headquarters.
Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093 Phone: 410-727-4300
Fax: 410-727-4391 © 2008 Kollman & Saucier, P.A. All rights reserved.
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