Our guest blog post this week comes from Resourceful HR‘s Kim J. Kimbell, SPHR, CCP. Kim works with businesses to enhance communication channels by creating and implementing effective, company-wide programs including orientation, communications plans, supervisor reviews, employee attitude surveys and employee resource guides.
When you receive an envelope with the return address “Equal Employment Opportunity Commission” and see the words “DISCRIMINATION CHARGE” a typical reaction is sweaty palms and immediate concern. This does not need to be the case. The goal of this post is to provide an overview of the charge process and tips for things that can be done along the way to minimize anxiety and maximize the company’s chance of a positive outcome.
The Equal Employment Opportunity Commission (EEOC) is an independent federal agency created by Congress in 1964 to eradicate discrimination in employment. The statutes that it oversees prohibit employment discrimination based on race, color, sex, religion, national origin, age, disability, and genetics or in retaliation for opposing job discrimination, filing a charge, or participating in proceedings under these laws. It is the EEOC’s responsibility to receive, initiate and investigate charges of discrimination filed against employers who have the statutory minimum number of employees. The statutes enforced by the EEOC and their statutory minimum employee headcount follows:
– Title VII of the Civil Rights Act of 1964 – 15+ employees
– Equal Pay Act of 1963 – 1+ employees
– Age Discrimination in Employment Act (ADEA) of 1967 – 20+ employees
– Rehabilitation Act of 1973, Sections 501 and 505 – 15+ employees
– Title I and V of the Americans with Disabilities Act of 1990 (ADA) – 15+ employees
– Civil Rights Act of 1991 – 15+ employees
– ADA as Amended of 2008 – 15+ employees
– Genetic Information Nondisclosure Act of 2008 – 15+ employees
First off, a charge does not constitute a finding that your company engaged in discrimination. The EEOC has a responsibility to investigate and determine whether there is a reasonable cause to believe discrimination occurred any time a person files with them.
Once a person files, the EEOC investigator will interview the charging individual and determine whether the EEOC will investigate or immediately dismiss the charge. The EEOC will notify the employer by mail within 10 days of receiving a charge. This notification provides the investigator contact information and specifics of the charge. The employer will be asked to respond to the allegations and provide documentation to substantiate its response.
Requests by the EEOC should be answered with timely, accurate, and specific responses presented in the spirit of cooperation and conciliation. Responses returned to the EEOC should contain information only relevant to that specific charge. This is not the appropriate forum for provision of opinions, editorials, speculations or information that is beyond what is specifically requested. If the company has concerns regarding the information requested, they should present them to the investigator. Remember, however, that the EEOC is legally entitled to information relevant to the allegations in the charge, and they have the authority to subpoena it. It is typically a good idea to have legal counsel review any company responses prior to their submission to the EEOC.
The EEOC may ask the company for a:
Position Statement: The position statement provides the opportunity for the company to provide their side of the story. It should be factual and contain only facts and data that can be substantiated. A good enough position statement may result in the EEOC concluding the investigation without the need for a RFI or on-site investigation.
Request for Information (RFI): The RFI will ask the company to submit information relevant to the charge. They may request policies, personnel files, and reports containing current and historical information about the workforce or applicant force including names, salaries, hires, race, sex, offer letters, terminations, training records and the list goes on.
The RFI is one of those times when companies that have quality, up-to-date human resource information systems (HRIS) applaud their investment. The ability to quickly and efficiently put together accurate data in ad hoc report format is invaluable. It is also a time that a company who consistently follows their policies and documents their employment actions and decisions will sigh with relief.
On-Site Visit: On-site visits are an opportunity for a company to educate the investigator about their business and any processes relevant to the specific charge. It is also a time when a company may be asked for data and documents and for witness interviews. A company representative may be present during interviews with management personnel, but an investigator is allowed to conduct interviews of non-management level employees alone. It is advised that the employer or the employer’s legal counsel sits in on all interviews where it is allowed. The employer should be aware of the information provided by their management as well as what questions are being asked. In addition, the company or their attorney should meet with managers prior to any EEOC interviews. The management staff should be educated about the specifics of the charge, the position of the company and how to conduct themselves during an investigative interview. Managers are often viewed by the courts as agents of the company and their statements may later be admitted into evidence at trial.
No one, including the EEOC, wants to pursue the time consuming and effort intensive investigative and determination process if a better alternative is available. Consequently, the EEOC offers employers the opportunity to resolve the charge early on in the process through the voluntary mediation or settlement process.
Mediation: The purpose of mediation is to provide an opportunity for the two parties to talk, with a third party mediating, and come to an agreement that is acceptable to both sides. Often mediation results in clarifying misunderstandings and reducing negative feelings between the parties.
The EEOC Mediation program is free, quick, voluntary and confidential. If mediation is successful, there is no investigation. Mediations are typically completed in one session, which usually takes no later than five hours. The mediators used are neutral third parties. The mediation is confidential and nothing is tape-recorded or transcribed. Information from the mediation session can’t be used during any investigation that results from an unsuccessful mediation. In addition, any Settlement Agreement is legally enforceable and is not considered an admission by the employer of any violation of laws enforced by the EEOC.
Settlement: A voluntary settlement can occur at any time during the investigation. When pursued early on a settlement can save a lot of energy and time because once it is entered into the charge is dismissed. With a settlement there is no admission of liability and the agreement is enforceable. Settlement is considered an informal process and is conducted through the EEOC investigator. If there is interest in resolution through settlement the company would notify their EEOC investigator.
Once the investigation is finished the EEOC will make a determination. That determination will be presented through one of the following:
Letter of Dismissal and Notice of Rights: If the EEOC finds no reasonable cause that discrimination occurred, they will notify the charging person and employer with a letter called Dismissal and Notice of Rights. This letter tells the charging party that they have the right to file a suit in federal court within 90 days from the day they received it.
Letter of Determination: If the EEOC finds reasonable cause to believe discrimination occurred, they will notify the charging party and employer with a Letter of Determination. This notification states that there is reason to believe that discrimination occurred. It offers the parties the opportunity to work with the agency to resolve the charge through an informal process known as conciliation.
Conciliation provides a final voluntary opportunity for the parties to work with the investigator to come up with an appropriate remedy. During conciliation the two parties will discuss negotiations and the company may present offers and counter offers may be made. At this stage in the process, the EEOC becomes an advocate for the 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, file annual reports with the EEOC, etc.
If conciliation fails the EEOC may choose to file a lawsuit against the company. If the EEOC decides not to litigate, they will send the charging party a Notice of Right to Sue letter informing them they can file a lawsuit in federal court within 90 days.