Receiving and responding to an Equal Employment Opportunity Commission – or EEOC - charge of discrimination can seem like a daunting task.
A "Notice of a Charge of Discrimination" is a signed statement asserting that an employer engaged in employment discrimination and requesting that the EEOC take remedial action.
With the EEOC's recent focus on workplace harassment and the national attention generated by the MeToo movement, it's important for employers to take the charge very seriously and make certain considerations before responding.
Today, I'd like to share with you some tips to consider:
For starters, Do Not Ignore the Charge.
An EEOC charge will arrive in a regular envelope via certified mail. The charge contains important details and the deadline for filing a Statement of Position. Do not let the charge fall through the cracks!
Tip Number Two: Make Sure you Notify and Get Key Decision Makers Involved Immediately.
It is important to involve appropriate personnel in the legal department and key decision makers from the outset to ensure necessary steps are taken to properly respond to the charge.
Next: Preserve Evidence.
Take necessary steps to preserve all relevant documents, files, e-mails, social media postings and anything else related to the charge. This may include suspending automatic electronic deletion policies and prohibiting employees from destroying documents related to the charge.
Take Measures to Prevent Retaliation.
Filing an EEOC charge is considered a "protected activity," and any adverse actions taken against the employee for filing the charge is considered retaliation. Employers should ensure that the employee filing the charge and employees participating in an investigation are not punished for doing so.
Tip Number Five: Collect relevant documents.
Before responding to the charge, be certain that you understand what happened. Part of the investigation should include collecting all written documents relevant to the charge, including documents requested by the EEOC.
Next: Identify witnesses.
Identify employees and other witnesses who may have knowledge or information regarding the allegations. Interviews may be necessary to gather information from witnesses.
Tip Number Seven: Review for comparator information.
An element of proving discrimination involves a showing of comparator employees. That is, similarly situated employees who engaged in similar conduct that were treated differently. On the flip-side, a key defense is to show that comparator employees were treated similarly. Identifying comparators is an important part of the investigation.
Also, Be Sure to Notify the EPLI Policy Carrier.
Employers with EPLI - or Employment Practices Liability Insurance - should notify their EPLI policy carrier of the claim promptly. An EEOC charge puts the employer on notice of a potential lawsuit, so filing a claim expeditiously is necessary to ensure coverage is not denied based on untimeliness.
Tip Number Nine: Consider Mediation.
The EEOC has a mediation program that is free to both parties and is often an option presented by the EEOC.
Mediation is a confidential opportunity to resolve the matter prior to responding to the charge.
Lastly, Prepare a Response.
Employers should draft the Statement of Position with careful consideration after thorough investigation. Given the significance of the Statement of Position, it is prudent to seek advice of counsel to prepare a comprehensive response. Employers should keep in mind that the Statement of Position is discoverable in litigation, so the response will be part of what is considered in any subsequent litigation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.