Review the charge carefully

You are looking to see the exact claim your employee or former employee is making. What are the grounds for their claim? Are they claiming discrimination based on sex, national origin, religion, etc.? If so, what is the basis for their complaint? While the complaint will not go into great detail, it may provide you the basic information you need to determine what documents you need to gather and provide to any attorney you may consult with.


Gather documents but wait to interview witnesses

This may be seem like odd advice; however, there may be strategic reasons to have a third party or your attorney interview the witnesses. You should consult with either your in-house counsel or outside counsel to determine who should conduct the investigation. There are advantages and disadvantages with any approach. It may be important to conduct an investigation that you disclose to the investigating agency or it may be more important to conduct an investigation that can be withheld. You should, however, gather any documents which detail what actually happened. This could be anything from payroll records to performance evaluations depending on what claims are being made. If a claim is made based on a "disparate impact", you will need to gather some basic information regarding the makeup of your workforce so that you and your attorney can determine whether there that data has any statistical significance.


Meet with your attorney

This can either be your in-house counsel or an outside attorney. Many business make the mistake of handling the claim at the charge stage internally. This can lead to problems later. Unless someone in your HR department has legal training, you should only assist in drafting the company's response to the claim of discrimination. Remember this document may later become evidence should the case proceed to trial. An explanation that is not fully detailed may lead the EEOC to conclude that the employer is hiding something or simply being deceptive. For example, saying that a layoff was for "business reasons" is not enough. You will need to detail what the business reasons were. Remember the EEOC investigator is a public sector employee who may have no idea of the business cycles in your industry. You want to take this opportunity to educate the investigator about your particular business.


Drafting a response

If you choose to draft a response to the charge yourself, you need to remember that you have multiple audiences. First, some--but not all--EEOC offices will forward a copy of your response to the employee or their attorney. Second, you are directing this response not only to the EEOC investigator but also any EEOC attorneys or management that may also review the file. An EEOC attorney may later review the file--even after an investigator has recommending finding reasonable cause--and agree with your evaluation. Third, should the EEOC or the employee choose to litigate this case, they are likely to try to use your position statement as evidence in their case. The one basic rule to ALWAYS follow is to simply state the facts. Do not say negative things about your employee that are not relevant to your case. And always back up your statements with any documentation you have. Feel free to provide the EEOC more than they ask for but ONLY if it supports your position.


Opting for EEOC mediation

The EEOC has a well run mediation program. You should not assume that they will be biased in favor of the employee. Having said that, however, there are mediators who were investigators and who, on occasion, may come close to being advocates for employees. Should you come across that, you should contact the individual in charge of the mediation program, or the district director, for that district or regional office. The EEOC will not force an employee or employer to utilize their mediation program. However, if you are a large, national employer, you may wish to consider signing up with the EEOC for their National Mediation Program. If you sign up for this program, any charge you receive will automatically be referred for mediation unless you opt out for that particular case. This can provide a national employer a very cost-effective means of responding to claims of discrimination.


Dealing with an EEOC investigator

Remember that each investigator will have their own styles and approaches to investigation. While they may use many of the same document request forms, their analysis of those documents and approach to interviewing witnesses will vary greatly. Unfortunately, so does their level of experience and knowledge. Do not assume that the EEOC investigator accurately understands employment law--even the laws that they enforce. While some are extremely talented and knowledgeable, others are much more mediocre. Also, as I mentioned before, always be prepared to educate the investigator about your business. If you believe it will help, even consider allowing them to visit your premises. They may already ask to do this; however, you may consider doing it even if they do not ask. Depending on what your business does, this may be very helpful to the investigator. It occasionally can even disprove the employee's allegations. It can prove especially helpful in disability accommodation cases.


Your rights as an employer

Remember that depending on the status of your employees (i.e., managers or non-managers), you may be entitled to sit in (or listen in) on any EEOC interviews. If you have the opportunity to do so, you should exercise that option. There are rare circumstances when you may not want to. Further, you , or your attorney, should always meet with your managers prior to any EEOC interview. Managers are often viewed by the courts as agents of their employers and their statements may later be admitted into evidence at trial. Thus, it is important to know what they will say beforehand. Having said this, you should never encourage anyone to withhold information or not tell the truth. This sounds obvious but occasionally occurs. The end result will almost always be litigation brought not just by the employee but also by the EEOC. And any lack of veracity will prove fatal to your case.


Firing an employee after receiving a charge of discrimination

This is a very dangerous area for employers, especially since the U.S. Supreme Court held that Section 1981 provides a claim for retaliation. A Section 1981 claim is not subject to the limit on damages that a Title VII claim is. This means that, in certain circumstances, an employee may bring his retaliation claim as both a Title VII and Section 1981 claim and seek unlimited damages. However, an employer should also not allow the mere filing of a claim of discrimination prevent them from taking a justified employment action. They should just be cautious when proceeding and consult with their attorney. On the other hand, under no circumstances, should an employer react to a frivolous claim by terminating the employee who brought the claim. The employee may not have had a valid claim to begin with but they will end up winning their retaliation claim.



If the EEOC investigator determines that reasonable cause exists to conclude that discrimination did occur, the law requires the EEOC to attempt to "conciliate" the claim. Conciliation is very different from mediation. At this stage in the process, the EEOC becomes an advocate for the employee (i.e., charging party). In addition to seeking monetary relief for the employee, the EEOC may also seek non-monetary damages such as requiring the employer to post notices, agree to filing annual reports with the EEOC, etc. The good news is that just because the EEOC conciliates a case does not necessarily mean that the agency will choose to litigae the case. This is because the agency is divided between its enforcement and legal sides. While the enforcement side may have concluded that reasonable cause existed, the legal side may disagree. Also, the Regional Attorney has to request approval from EEOC headquarters to file a lawsuit.


The EEOC issued a right-to-sue letter. What now?

Regardless of whether the EEOC believes "reasonable cause" exists or not, the agency cannot refuse to issue a right-to-sue letter should the employee request one. However, if the EEOC issues a right-to-sue letter, that document will state the length of time the employee has before they are required to file suit. In federal cases, that time limit is 90 days. Depending on your state law, that time limit may be longer. If the employee was not represented at the EEOC stage, they will now have to also seek counsel. Obviously, if you are served with a lawsuit, you should immediately contact your attorney (and insurer) and let him know. You will want to provide your attorney with all the paperwork you received with the lawsuit and any other papers you have from the EEOC process. You will have a limited amount of time to respond to the lawsuit. If the lawsuit is filed in state court, you should also ask your attorney about getting the case transferred to federal court.