When the EEOC Comes Knocking…

By Abena Sanders

As a call center manager, finding an Equal Employment Opportunity Commission (EEOC) charge in your inbox may cause fear and confusion. Is the company being sued? We didn’t discriminate against anyone…. This is completely ridiculous! What do I do now?

1. Don’t Panic – Be Informed: The Equal Employment Opportunity Commission (EEOC) is an independent federal agency that has the responsibility of preventing and investigating discrimination in the workplace. The federal government has tasked the commission with enforcing several statutes, including:

Title VII of the Civil Rights Act: prohibits employment discrimination based on race, color, religion, sex, and national origin

Equal Pay Act: prohibits wage discrimination between men and women working in the same establishment who are performing under similar working conditions

Age Discrimination in Employment Act: prohibits discrimination against employees age forty years and older

Fortunately, an EEOC charge does not have to lead to full-scale panic. Before filing any discrimination lawsuit, a potential plaintiff must “exhaust” his or her administrative remedies by filing a charge with the EEOC. This is a fairly routine act that any employee who has the slightest inclination to sue under the statutes administered by the EEOC must perform. The filing of a charge does not mean that the company is culpable of discrimination or that the EEOC believes that the charge has any merit. Rather, filing a charge merely signals the beginning of the investigation process.

2. Draft a Position Statement: Assess the charge very carefully to determine which statute the “charging party,” or employee filing the complaint, claims has been violated and on what basis (race discrimination, retaliation, etc.). The charging party must state the facts that form the basis of his or her discrimination complaint within the charge.

In the documentation accompanying an EEOC charge, the EEOC will sometimes ask if the employer is willing to engage in the mediation process. Far more often, however, the EEOC will request specific documentation and a “position statement” from the employer, thus beginning the investigation process. A position statement is simply a short narrative setting forth the nature of the company’s business, the charging party’s employment history, any applicable company policies, and an explanation or rebuttal of the facts set forth in the charge.

A position statement should be drafted persuasively, because it is the employer’s first (and sometimes only) opportunity to set forth in a cohesive way why any adverse employment action taken against the charging party was legal (for example, past disciplinary history, violation of company policy, or the company’s legitimate business needs). The position statement also gives the employer an opportunity to append relevant documentary evidence to help his case. In sensitive or complicated cases, the employer might seek legal counsel to assist with drafting the most effective position statement incorporating applicable laws. At certain points in the investigation, the EEOC may ask for additional information to provide as a supplement to the statement.

3. Be Prepared for an On-Site Investigation: Sometimes a position statement will be sufficient to allow the investigator to determine the merits of the case (particularly if the statement is drafted well). However, the investigator may also demand an on-site visit. Unfortunately, an on-site investigation signifies greater interest in the case on the part of the EEOC. Cases involving multiple charging parties or potential class-action treatment will nearly always invite an on-site investigation. While on-site investigations typically are rare, the EEOC has been using them with increased frequency.

During an on-site visit, the EEOC investigator may ask to tour the call center facility to get a sense of the floor layout and to review relevant files. The investigator will almost certainly ask to speak with certain employees who have been named in the charge, the position statement, or in any interviews conducted with the charging party. However, prior to the visit, an employer should request that the investigator provide a list of the employees he seeks to interview so the company’s managers will be prepared for the process to come. The company’s attorney or other representative is entitled to be present in any EEOC interview of company managers.

4. Take a Number and Wait Your Turn: An EEOC investigation can be an agonizingly slow process. Because of the condition of the economy, the EEOC’s caseload is at a record high, meaning that investigations may extend for months, if not years. Speaking practically, the overextended state of the bureaucracy is not a negative development for an employer. With the passage of time, cooler heads may prevail and the employment situation may resolve itself less formally.

After 180 days from the filing of a charge have passed, any charging party has the right to request a Dismissal and Notice of Rights from the EEOC – even if the investigation has not concluded. If the EEOC receives such a request, it will close the investigation, and the employee will be free to file a complaint in the appropriate court within ninety days. Again, the issuance of a Dismissal and Notice of Rights at the request of the charging party is not an indicator of employer guilt; it is a necessary administrative hurdle for the potential plaintiff to jump before he can legally sue.

When the investigation is complete – provided the charging party has not already requested a Dismissal and Notice of Rights – the EEOC will make a determination as to whether there is “reasonable cause” to believe that discrimination occurred. If there is no reasonable cause, the EEOC will issue a Dismissal and Notice of Rights letter to the charging party. While this is the best possible outcome for an employer during an EEOC investigation, the charging party still has the option to sue within ninety days. More problems arise if the EEOC determines that there is reasonable cause. In such an unfortunate case, the EEOC will issue a Letter of Determination to both parties, instructing them to cooperate with the EEOC in resolving the charge. If such conciliation fails, the EEOC has the right to bring its own lawsuit against the employer or give the charging party clearance to sue.

While handling an EEOC charge may be an administrative hassle, it does not have to cause undue anxiety or disruption. A charge does not signify that a discrimination lawsuit necessarily will be filed; rather, it is a signal to an employer that the wheels are in motion. Being aware of your rights and responsibilities as an employer at the EEOC investigation level will place you in the best position to defend your employment decisions going forward.

Abena Sanders is an attorney with Fisher & Phillips. Based in Atlanta, she focuses on the representation of management in employment litigation and administrative proceedings arising under Title VII.

[From Connection Magazine June 2012]

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