How to Initially Respond to EEOC Discrimination Charge
This is Part 1 of a 2 Part series designed to guide employers through the EEOC Charge Process. It takes an employer all the way through the process, prior to any finding being made by the EEOC. Part 2 will focus on what happens if the EEOC determines that some type of discriminatory conduct has taken place.
As an employer, you’ve been notified (either through snail mail or more recently, e-mail) of a Charge of Discrimination filed by a disgruntled employee with the U.S. Equal Employment Opportunity Commission (EEOC) alleging a violation of Title VII of the Civil Rights Act. Now what are you going to do (bedsides calling Boznos Law for assistance?!)
At a very early stage, prior to any investigation being conducted, the EEOC will inquire whether the parties are interested in mediating the dispute. This method offers the simplicity of attempting to work out a solution at a very early stage, before an employer has to expend considerable time, effort and resources to respond to the Charge. It also lessens the burden on the EEOC, an overworked and underfunded Federal Agency with literally thousands of Charges coming across their counter every year. Finally, mediation offers a Charging Party the opportunity for a swift conclusion to the Charge. If mediation is unsuccessful, or if one party is unwilling to mediate, then the matter may take up to a year or more, depending on EEOC backlog, to be addressed. It should be noted that the refusal by an employer to mediate will not be viewed in any negative light by the EEOC.
In the mediation setting, proceeding, each side is allowed to present their side of the case in an open, controlled and hopefully non-adversarial setting down at the EEOC offices. The EEOC investigator assigned to the case will hear all arguments and try to bring the parties to a mutually agreeable resolution. Mediation usually occurs well before the EEOC has made any determination as to the merits of a Charge. It is also important to note that the EEOC cannot force a settlement by either party. All it can do is point out the state of the law, apply the facts to the law, note strengths and weaknesses in either party’s position, and try to get agreement to resolve the Charge.
If there is no agreement one way or the other to reach a resolution of the Charge, the EEOC will refer the matter over to its investigative unit to conduct a full investigation related to the Charge.
In the event that mediation is unsuccessful, or one party refuses to mediate, an employer is faced with certain mandatory deadlines. First, within 60 days of the receipt of the Charge, an employer must file a Verified Response to the Charge. This Verified Response is essentially an affirmation or a denial of each and every allegation made in the Charge itself. It must be signed and sworn to by an individual with knowledge of the allegations and cannot be signed off by a lawyer. It must be notarized. The failure to send in a Verified Response will be used as a factor mitigating against the employer in further proceedings.
Second, an employer must respond to a detailed Questionnaire sent by the EEOC. This Questionnaire seeks information such as, whether or not the employer maintains a policy against the type of conduct alleged, who is responsible for administering the policy, examples in the past where this type of conduct took place, the resolution of those past complaints, etc. This Questionnaire must also be submitted, along with any required documentation, within 60 days of the receipt of the Charge.
Finally, an employer is required to file what is known as a Position Statement. This is the employer’s opportunity to tell its side of the story and refute the claims made by the employee. It is a key point in the process and should be handled very carefully. Most employers at this point feel it is incumbent upon them to drag up every incident of employee misconduct that the Charging party was guilty of since the day they were born. Hold off on that instinct. A Position Statement should be narrowly tailored to rebut each and every allegation made in the Charge. It should show an understanding of the area of Title VII claimed to be violated and, given the current state of the law, why an employer should not be found to have violated the statute, and seek to have the Charge dismissed immediately. Here is where skillful drafting by the attorneys at Boznos Law can greatly assist an employer. We have successfully responded to and obtained dismissals on countless EEOC Charges. The Position Statement, like the Questionnaire, must be filed within 60 days of receipt of the Charge. There is a provision in the internal EEOC guidelines that will allow an employer to be granted an automatic 2-week extension of time to file the Position Statement as well as the response to the Questionnaire. An employer must formally ask for the extension in writing.
Position Statements are designed to provide the EEOC with enough information to determine if the Charge has any merit. Until recently, Charging Parties were not allowed to review an employer’s Position Statement until well after the Charge had been disposed of. The state of the law has now changed. For all Charges filed after January 1, 2016, the EEOC is making the Position Statements available to Charging Parties and their lawyers. Since the Position Statement necessarily sets out the employer’s defenses to the Charge, it also gives the Charging Parties attorneys a roadmap as to how to fashion a future lawsuit to anticipate these defenses. For that reason, the Position Statement should be concise and the employer should anticipate it will be used in future court proceedings.
Once the investigation is complete, the waiting starts for a decision by the EEOC. It may find that the facts as alleged do not present clear cut evidence that discrimination took place. Often the EEOC will claim that it was “unable to determine, based on all the evidence, that a violation of the statutes took place.” In this case, an employee will be given a Notice of the Decision as well as what is known as a “Right to Sue” letter. The employee then has 90 days to file suit in federal court based on the alleged discrimination. A failure of the aggrieved employee to do so within that 90 day period will result in an automatic bar from the claim being brought forward and an employer can use that failure as a method to have any late filed lawsuit immediately dismissed.
Another possibility is that the EEOC will issue what has been called a “For Cause” determination. Essentially the EEOC is finding that it believes that discrimination has taken place. This is a very bad outcome for the employer! Depending on the type of claim involved, the size of the affected individuals (i.e. whether the conduct affects an entire class of employees) and the precedent the EEOC is willing to stand up and fight for, the EEOC itself may signal its willingness to file suit on behalf of the aggrieved employee and all other similarly situated individuals. It is rare that the EEOC will file suit on a one off basis. The EEOC is looking to make headlines and teach a lesson that certain type of conduct that impacts many, many employees will not be tolerated. It is one of the ways they justify their existence and receive future funding!
Assuming a “For Cause” determination has been made, prior to the EEOC filing suit on its own, or issuing the employee a “Right to Sue” letter, it will seek to have the parties “conciliate” the dispute. The Conciliation process and possible outcomes will be the subject of Part 2 of this series.
With over 30 years’ experience in advising employees and businesses on labor and employment issues and business concerns, such as the new Childhood Bereavement Leave Act, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the ever changing business law landscape. Call Bill Boznos today at (630) 375-1958 or contact us through our website.