Sealed Without a Kiss - Equal Employment Opportunity Commission

When you get official correspondence from the EEOC, odds are you won't be opening a love letter.

You flip through your mail at the office and run across an envelope with the dreaded return address of the Equal Employment Opportunity Commission (EEOC). As you slowly tear open the envelope, perspiration beads on your forehead. When you remove the contents, you learn that it is exactly what you feared: a charge of discrimination. What should you do now?

The Charge

Unlike proceedings from the Occupational Safety and Health Administration, which usually begin when that agency knocks on your company's door, EEOC proceedings usually begin with a written charge of discrimination that employers receive in the mail.

By law, the EEOC is supposed to provide employers with a copy of the charge within 10 days of its filing; however, the EEOC often fails to do so, and this failure is not, unfortunately, a defense to the charge.

Once you, as the employer, receive a charge, you should immediately assess the charge's merits. Start by looking for any procedural defects. Specifically, ask yourself the four following questions:

* Is the charge signed, dated and notarized by the person who filed it? (This person will be referred to in this article as the "charging party.")

* Was the charge filed within the time allowed? In states that have a fair employment agency, charges must be filed within 300 days of the last date on which alleged discrimination occurred; in states that do not have a fair employment agency, charges must be filed within 180 days.

* Does the charge name the proper employer (i.e., the company for which the charging party either worked or applied to for work) as the respondent? If not, the charge might have been sent to the wrong company by accident. Further, if the employee making the charge is a temp, the charge might incorrectly name your company, rather than the agency for which the temporary employee works.

Finally, if the employee made a minor mistake in naming your company and fails to correct this error, there is a slight chance that this procedural flaw could be enough to get the case dismissed. (But don't get your hopes up!)

* Is the charge filed against a company that is subject to federal antidiscrimination statutes?

The EEOC enforces four federal laws: Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA) and the Equal Pay Act (EPA).

Only companies with 15 or more employees are subject to Title VII and the ADA. Only companies with 20 or more employees are subject to the ADEA. (Generally, the EPA applies to any employer subject to the Fair Labor Standards Act, which, for practical purposes, is virtually every private sector employer and most, if not all, public sector employers.)

Once you have checked for procedural errors, investigate the factual allegations of the charge. Two primary sources of relevant information are company records and persons with first-hand knowledge of the facts.

Start by reviewing company records--such as the personnel file of the employee who filed the charge-- to obtain relevant information. (If the charge was filed by a job applicant, review that person's application, resume, the job advertisements and other relevant documents.) Personnel documents most often relevant to EEOC charges include production records, disciplinary records, attendance records and performance evaluations.

You also should review the personnel files and other relevant documents of other persons whose situations may be comparable to that of the charging party. For example, if the charging party was discharged for poor attendance, review the personnel files of other employees with comparable attendance records to ensure that none were treated more favorably than the charging party. If one or more were treated more favorably, be sure there is a legitimate business reason for the discrepancy. If there is no legitimate reason, the EEOC may use this disparate treatment as grounds for finding that the company behaved in a discriminatory manner.

Next, review any policies or guidelines relevant to the EEOC charge and ensure that the company followed these policies and guidelines when dealing with the charging party. A failure to follow company policies may be, in the eyes of the EEOC, evidence that the company treated the charging party discriminatorily.

Finally, interview any persons who may have first-hand knowledge of the charge. During these interviews, make it clear that you are merely engaging in a fact-finding investigation and that there will be no retaliation against those interviewed for providing unfavorable information about the company.

Preparing a Response

Once you have a firm grasp of all facts relevant to the charge, you are ready to prepare a response. In most cases, you can make one of three possible responses:

* Agree to mediate the charge, if invited to do so by the EEOC.

* Make a settlement offer to the charging party through the EEOC without participating in the formal mediation process.

* Prepare a "position statement," which sets forth the company's version of the events, and file this statement with the EEOC.

If you pursue settlement or mediation, the EEOC will defer investigating the charge against your organization.

If you decide not to attempt settlement or mediation, the EEOC will require you to submit a written position statement explaining why your organization took the alleged adverse action against the charging party. The EEOC also generally requires the company to respond to specific questions about the case.

Your goal in preparing the position statement is to convince the EEOC that no discrimination occurred and that there is no cause to conduct an "on-site" investigation at the company's premises. (During on-site investigations, which are discussed later, the odds increase that the agency will discover evidence it can use against your organization.)

In general, the position statement is written in narrative form and explains the legitimate, nondiscriminatory reasons for the adverse action taken against the charging party.

A good overall format for most position statements includes:

* A brief description of the company's business.

* A description of the position the charging party held with the company or, if the charging party was an applicant, the position to which this individual applied.

* A description of any rules, policies or procedures you believe applicable to the charge. For example, if the charge alleges sexual harassment, briefly describe your organization's anti-harassment policy and attach a copy of the policy to the position statement. Similarly, if the charging party was discharged for violation of a work rule or policy (such as an attendance policy), describe the rule in the position statement and attach a copy.

* Next, describe in chronological order the events that led to any adverse action taken against the charging party. Make it clear that the adverse action was based on legitimate, nondiscriminatory reasons.

One way to do this: Show that the company took similar actions with comparable employees who are not members of a protected class. For example, if a Brazilian former employee claims she was terminated because of her national origin, the employer should try to show that it treated her the same way it treated non-Brazilian employees.

As emphasized in the recent U.S. Supreme Court case Reeves v. Sanderson Plumbing (197 F.3d 688), companies should always tell employees and the EEOC the truthful reason for any adverse action taken. Under the Reeves ruling, employers that fail to provide honest reasons for the adverse actions they take against employees will have a very difficult time getting their cases dismissed without a jury trial.

This can be crucial to employers, who generally should seek to avoid jury trials whenever possible. The reason: Juries are more likely to make decisions based on their perceptions of fairness, rather than what the law requires. This makes them less predictable than judges and adds a level of uncertainty to the entire litigation process.

Events Following The Position Statement

Once the position statement has been filed, the EEOC may choose any of the following courses of action:

* Make a determination without requesting additional information from the company.

* Request additional documentation or other written information from the company.

* Hold a fact-finding conference, usually during an investigation on the company's premises.

If the EEOC requests additional documentation or other written information, it is generally in your best interest to provide it. If your organization refuses to provide information voluntarily, the EEOC may issue a subpoena and force the company to do so. Also, providing the additional information may reduce the likelihood that the EEOC will perform an on-site investigation.

Of course, if the EEOC request is burdensome, or involves trade secrets or information that you believe irrelevant to the charge, you can try to convince the EEOC investigator to narrow the scope of the request. Sometimes investigators will do so to obtain the information voluntarily from the employer and avoid expending the agency's time and resources enforcing a subpoena.

Occasionally, despite your best efforts, the EEOC will decide that it is necessary to perform an on-site investigation. If this occurs, keep several things in mind.

First, negotiate a mutually agreeable date and time for the inspection. Despite what an investigator may lead you to believe, the EEOC does not have an unfettered right to enter your property. Because the EEOC is a government agency, it cannot inspect your premises unless it has your permission or holds a warrant. Use this fact as leverage to negotiate a favorable time for the on-site investigation.

Second, before you agree to allow the on-site inspection, ask the investigator to describe the goals of the investigation, who is to be interviewed and the job or work areas he or she wishes to observe. Then limit the scope of the investigation to what the investigator has indicated.

Remember: Without a warrant, the EEOC has no right to do anything on your property to which you do not consent. And, although it is generally in your best interest to be cooperative and comply with reasonable requests from the EEOC, you should not allow the agency to greatly expand the scope of the investigation.

Third, before the on-site investigation begins, look over the list of employees the EEOC wishes to contact. If there is anyone on the list you have not interviewed, do so now. Again, make clear to any employees you interview that you are not trying to influence their testimony, that they should tell the truth and that there will be no retaliation for anything they relate to the EEOC.

Finally, designate a company representative who will attend all interviews between the EEOC and managerial employees. (You do not have the right to attend interviews between the EEOC and non-managerial employees.)

The EEOC's Findings

At virtually any stage of the charge process, the charging party may ask the EEOC to terminate its investigation and issue a right-to-sue notice. This notice allows the charging party to file suit in court.

Under three of the four laws that the EEOC enforces, an individual must receive a right-to-sue notice from the agency before filing charges in court. (The EPA is the only exception to this rule.) The only time the agency will refuse to provide a right-to-sue notice is when it intends to sue the employer itself. In such a case, the employee must wait until the agency files its lawsuit, then intervene in the suit as an additional party.

If the charging party does not interrupt the investigation process, the EEOC will continue until it reaches a decision on the charge. If the decision is in favor of the employer, the agency will issue a "no cause" finding and the matter stops at the EEOC; however, the charging party retains the right to file a discrimination claim in court within 90 days.

If the decision is in favor of the employee, a "cause" finding is issued, and the EEOC will invite the company to engage in a conciliation process. Essentially, the EEOC will try to help the parties reach a mutually agreeable settlement.

If the parties agree to settle, the EEOC may also impose additional requirements on the company, such as providing training on federal anti-discrimination laws for its supervisors and posting notices in the workplace stating that it will not engage in employment discrimination. If both parties agree to all terms, the matter is settled. No lawsuit may be filed in court over the settled matters except to enforce the settlement agreement, if necessary.

If the conciliation fails, the EEOC will issue the charging party a right-to-sue notice permitting the individual to file a suit in court, or the EEOC itself will file suit against the employer.

Timothy S. Bland, SPHR, is an attorney in the Memphis, Tenn., office of Ford and Harrison LLP, a national law firm. His practice is limited exclusively to representing companies in labor and employment matters. He is a member of SHRM's national Workplace Diversity Committee.

COPYRIGHT 2000 Society for Human Resource Management
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