Receiving a notice that someone has filed a charge of discrimination against your organization with the Equal Employment Opportunity Commission (EEOC) can be frightening. While many employers are familiar with the formal litigation process, an EEOC charge is different; there are different deadlines, different processes for submission of information, and a different timeline for receiving a resolution to the charge that’s been filed. This can lead to confusion within an organization against whom the charge has been filed.
In this blog post, we will shed some light on the steps in the EEOC charge process and discuss what employers can do to effectively handle and respond to a charge should they ever receive one.
A charge of discrimination is a formal allegation made by an employee – current or former – or an applicant that they were subject to unlawful discrimination in terms of hiring, firing, promotions, harassment, training, wages, and/or benefits. This includes discrimination on the basis of race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40-years or older), disability or genetic information.
Once the EEOC receives a charge of discrimination it starts investigating the charges. This begins by notifying the employer that a charge has been filed within 10-days. This is usually the first time the employer finds out that a charge of discrimination has been filed against them. It’s important to remember that when an employer receives this notification from the EEOC, it does not mean the EEOC has determined the employer engaged in any wrong-doing. It is simply a notification that the EEOC has received a charge and has assigned an investigator to look into the merits of the charge.
If you receive a notification, it is critical that you contact your attorney immediately. The employer will typically have about 30-days to provide the EEOC with a position statement. To set the ground work for an effective position statement, the employer – together with an attorney — should always conduct their own internal investigation. What this internal investigation looks like will depend on the situation, but usually involves witness interviews, document collection, and affidavits. All these things need to be assembled in a very short amount of time. Thus, the investigation process needs to start immediately.
A charge of discrimination contains numerous key pieces of information provided by the employee (also known as charging party). The most important will be the statement of particulars, usually in a narrative statement given by the charging party explaining what happened and why they think the events amount to unlawful discrimination. Employers should carefully scrutinize every aspect of the charge in order to determine the focus of their investigation.
It is important to remember that retaliation against any individual because they have filed a charge or participated in an EEOC investigation is strictly prohibited. This remains true even if the EEOC determines there is no merit to the underlying charge.
The EEOC has taken most of their charge processing online. The notification employers receive from the EEOC will include a link to the EEOC charge portal where all information related to the charge is contained. This is also where the employer will submit its position statement. The portal is an important tool for employers as it will let employers know what steps are required of them at any given point in time.
The second important piece of the charge process is the position statement. As mentioned earlier, this is usually due within 30-days of the employer’s receipt of the charge notification. The position statement is an opportunity for the employer to fully and completely respond to the charges that have been made against it. It is critical for the employer to take this document seriously as it will be the first thing the investigator sees from the employer regarding the validity of the charge. The position statement can be used against the employer if a lawsuit is filed so accuracy is crucial.
An effective position statement should start with a section dedicated to the background information relating to the charge. For instance, if the employer is charged with a discriminatory firing, the background section should include all relevant facts for the termination (e.g. disciplinary action, the employee’s behavior which warranted the discipline, etc.) and why the employee was not terminated for an unlawful discriminatory reason. This is where the results of the employer’s internal investigation will be placed. The information provided by the employer in this section should be supported by documentary evidence as well as affidavits provided by witnesses and supervisors. The types of documents submitted will depend on the charge. For instance, if the charge relates to pay discrimination, the employer should submit the charging party’s payroll information along with the position statement. These documents should be screened for confidential information (e.g. social security numbers, trade secrets, sensitive medical information, etc.) before they are filed with the EEOC. Because the background section contains the employer’s version of events, it will set the groundwork for the employer’s response to the statement of particulars.
Next, an effective position statement will focus on the allegations made by the charging party. This is typically done by breaking the allegations down into smaller sections and providing a concise statement responding to each claim. For instance, a statement of particulars might say: “My employer refused to provide a reasonable accommodation for my disability. I complained about the refusal and was terminated in retaliation.” The position statement should respond to the two accusations separately, as they invoke two separate legal theories. Because this section usually involves legal analysis, the employer’s attorney will be responsible for drafting this portion of the position statement. However, for the attorney to effectively respond, it is important that they be involved in the investigation process so they have full knowledge of all relevant information.
Taken together, the background facts and response to the statement of particulars should paint a complete picture for the investigator. By reading the position statement, the investigator should understand why the employer took the action it did, and why that action is not unlawful. While an attorney is responsible for the legal analysis contained in the response to the statement of particulars, the employer is the stakeholder best positioned to provide key facts and documents related to the investigation for the background section. As a result, it’s critical that both the attorney and employer have open lines of communication so that information can be collected and leveraged effectively in the short amount of time given for a response.
If more time is required to fully craft an effective position statement, the EEOC requires employers to notify the investigator as soon as possible setting forth good cause for the extension and the amount of additional time needed.
The EEOC will also offer the parties an opportunity to voluntarily engage in mediation. The mediation process is handled by an EEOC representative. Even in cases that are unlikely to settle, the mediation process can be useful to get more facts and find out what the charging party wants.
The waiting is perhaps one of the most frustrating parts of the investigation process for employers. Once everything is submitted, it can take up to a year before the charge is resolved. During this time, the EEOC investigator may ask the employer for more information relating to the charge or may even conduct a site inspection or witness interviews. If other factors become relevant, the employer should supplement its position statement. Typically, the attorney will keep the employer up to date with progress, but employers can find most information relating to the status of the charge in the EEOC’s charge portal. However, it is important to preserve relevant records during this time (e.g. payroll and personnel files) as they may become relevant to the investigation.
The EEOC can make a finding there is probable cause or no probable to believe discrimination has occurred. In either situation, the EEOC will issue a right to sue letter allowing the charging party to file a discrimination lawsuit in federal court. The charging party can request, and the EEOC will issue, a right to sue letter even before a final decision is made.
Fishel Downey Albrecht and Riepenhoff regularly represents employers before the EEOC and in court. We also help employers conduct investigations and develop non-discrimination policies. If you need an experienced team of employment law attorneys, contact us at info@fisheldowney.com.