So you’ve been mailed a notice from the Equal Employment Opportunity Commission (“EEOC”) informing you that a charge of discrimination has been filed against your company, now what? The following are some important steps employers should take upon receipt of such a letter.
All files, documents, emails, etc. relating to the allegations of the charge should be collected and preserved (both hard copies and electronic copies). If the company has an in-house legal department, they should be informed and may want to issue a company-wide litigation hold, suspending all document deletion until the investigation is complete.
Consider Getting a Lawyer Involved
Companies are not required to be represented by counsel during the EEOC’s investigative process. Many large companies have in-house counsel or human resources trained professionals who will be able to respond to the charge. However, depending on how complex the claims are, smaller companies may wish to consult a lawyer, especially if there is a high potential for liability. Typically if the charging party (the individual who filed the EEOC charge) has an attorney, the company should seek representation by an attorney as well.
Draft a Position Statement and Respond to a Request for Information
Most of the time employers will be asked to respond to the charge of discrimination by providing a position statement and responding to a request for information (“RFI”). The position statement is the employer’s opportunity to explain the non-discriminatory reasons for taking certain employment actions against the charging party. Companies will have twenty-one days to submit this response, however, an extension may be granted upon request. Employers are also required to submit a response to an RFI as an attachment to the position statement. In doing so, employers should respond to all questions asked by the EEOC and provide information and documents that are relevant to the allegations in the charge.
Conduct an Investigation
Prior to drafting the statement, the company must conduct an investigation into the allegations. Ideally, this investigation would have already occurred if and when the employer was first put on notice of the employee’s complaints via some formal or informal company complaint procedure. However, if the company was unaware of any employee complaints or failed to conduct an investigation, now is the time it must be done. During the investigation, employers will want to interview any witnesses. This investigation should be completed promptly, but thoroughly because any inaccurate information in a position statement may be used against the employer at trial.
The EEOC encourages participation in its mediation program to resolve conflicts. If both parties agree to take part in mediation, a session will be scheduled with a trained mediator. The mediation program offered by the EEOC is free to the parties and all information disclosed to the mediator is kept confidential and not shared with the EEOC investigator. Mediation gives the parties an opportunity to come to a mutually agreeable resolution with the assistance of a neutral mediator.
Retaliation against the complaining employee or any other employees who participate in the investigation is illegal. Therefore, If the individual who filed the charge is still a current employee, employers must ensure that he or she is not subject to any actions which may be perceived as punishment or retaliation for their filing of the charge.
Overall, having an action plan in place and responding appropriately to an EEOC charge of discrimination will help reduce an employer’s risk of such charge becoming a lawsuit in the future.
This article is presented by the Dallas employment lawyers at Clouse Dunn LLP. To speak to an employment attorney about a workplace discrimination or retaliation matter, send an email to [email protected] or call (214) 239-2705.
About Keith Clouse / Dallas Employment Lawyer Keith Clouse
Keith Clouse is a Texas employment law specialist with over 25 years of experience representing senior executives, business owners, physicians, and corporations in complex employment litigation, arbitration, and negotiations. Senior executives, physicians and other professionals consistently rely on Mr. Clouse for employment law expertise and advice on employment contracts, covenants not to compete, severance agreements, trade secret disputes, breach of fiduciary duty claims, and claims based on workplace discrimination, retaliation, and harassment. Source CDKLawyers.com
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