How To Respond To An EEOC Charge of Discrimination

Your company received an EEOC complaint charging your company with discrimination against an employee. The EEOC is a federal agency that has the authority to investigate possible discrimination. The EEOC will ask both the employee or former employee and the employer to submit information pertinent to its investigation. EEOC may request documents, information, and interview witnesses from your company concerning the discrimination. This article help employers understand how to respond to an EEOC charge of discrimination.

Our EEOC defense attorney can assist your company with an EEOC Charge of Discrimination. We have some pointers below to help you throughout the investigation process but to protect your company; you need quality legal representation.

What To Do When You Receive an EEOC Charge of Discrimination Notice

• Preserve information – Immediately try to ensure evidence and relevant information is not destroyed or deleted. Issue a “litigation hold notice” to people in your company who will have access to relevant The litigation hold notice will explain why the company is involved in litigation, list the information that needs to be preserved, and explain the consequences of doing so. Generally, you need to preserve disciplinary records, performance records, personnel files, prior complaints, and communications about the employee.
• Prevent retaliation – You should make it clear to your managers that they are not to retaliate against the charging party. If there is no merit to the charge, but a manager retaliates against the charging party, liability is created where none existed.
• Establish privilege – It is prudent to conduct an internal investigation into the charge; however, these notes can be used in discovery in a lawsuit. If the investigation is conducted by an attorney, then their notes can be considered as privileged and therefore can be hidden from discovery.

Investigating a Discrimination Charge

• Review documents – It is important to gather disciplinary notices, personnel documents, and employment policies. Ensure the employment policies are the ones in effect during the time of the alleged discrimination. Pay attention to the dates on the disciplinary notices and ensure the timeline is correct. Before you interview witnesses, it is vital to understand the timeline of events.
• Interview personnel – When reviewing documents, make a note of people you need to interview. You should interview anyone mentioned in the charge, the supervisor and manager of the employee, any decision-makers involved in the charge, and anyone in HR who was involved in the process.
• Follow up – After the first round of interviews, you may need to conduct follow up interviews due to the information you discovered during the interviews. You may have new witnesses you need to interview, or need to question witnesses about newly discovered information. You might also need to track down additional documents. Having a full picture of the events surrounding the charge will help you to assess the exposure and liability of your company and make informed decisions.
• Consider mediation – The EEOC offers a free mediation service to resolve charges without the need for Taking mediation, if suitable, before you submit a position statement to the EEOC can help your case and show that you took reasonable steps to resolve the issue when it was brought to your attention.

Drafting the Position Statement

• Start by mentioning your EEO policy – Your EEO policy will help the EEOC investigator know that your company takes EEO seriously. Emphasize the section of your EEO policy relevant to the charge and how your company ensures all employees are familiar with the policy.
• Address the timeline – An employee has 180 days from the discrimination to file a claim with the EEOC. Generally, the EEOC will dismiss clear untimely claims, but sometimes an employee will omit key dates and conceal an untimely claim. If your investigation has shown this to be the case, address the timeline and submit evidence to show it is an untimely claim.
• Address the comparisons – Many discrimination charges are due to allegations that other employees submitted the same offense but were disciplined less harshly than the charging party. In your position statement, distinguish between these situations. Showing one of the following is enough for a court to dismiss the charge on insufficient evidence:
  • The charging party has a different disciplinary record to the other employees
  • The alleged offenses are different
  • The decision-makers in the alleged offenses were different
  • The governing policy was different

Identifying the employees who committed the same offense as the employee can help to prove that their protected status was not a factor.

• Using exhibits – Quote any attached evidence to make the EEOC investigator’s job easier. For example, if the charging party was terminated for poor attendance, not the alleged discrimination, then quote the relevant section of the attendance policy as well as attaching it.

Finalizing the Position Statement

• Ensure accuracy – If the case goes to court, your position statement will be used as evidence. A jury will question your credibility if the position statement and trial evidence is inconsistent. Ensure your position statement is accurate before submitting it.
• Scrub the metadata – Position statements and evidence are submitted electronically on their password-protected portal. Convert all your word files to pdfs before you upload them. This will ensure metadata such as comments, redlines, and amendments are hidden from the EEOC.