The first step for most disgruntled employees who believe they have been discriminated against is to file a Charge of Discrimination with the EEOC, which is a prerequisite for filing a lawsuit under several discrimination statutes, including Title VII, the ADAAA, ADEA, Equal Pay Act, GINA, and the Pregnancy Discrimination Act – the statutes that prohibit discrimination and retaliation based on gender, race, color, national origin, disability, pregnancy, and religion. According to EEOC statistics, employees are not shy about filing Charges of Discrimination. In fiscal year 2013, employees filed 93,727 charges. Within Bradley Arant Boult Cummings LLP’s footprint alone, employees filed 13,259 of those charges with 3,105 in Alabama; 1,937 in Mississippi; 2,988 in Tennessee; 4,453 in North Carolina; and 776 in the District of Colombia.
This article provides a quick quiz to test your knowledge of how best to handle receipt of an EEOC Charge—whether you choose to handle it in-house or employ outside counsel. No worries if you do not score 100% on this quiz. Remember, we are dealing with a hypothetical charge, and an ounce of prevention is worth a pound of cure. Here’s the quiz:
1. So, you’ve received an EEOC charge from a former or current employee. Now what?
- Ignore it. The EEOC is only an administrative agency and it has no power over your company.
- Circulate it to everyone who knows the Charging Party and make them write statements about everything they remember—good or bad—about the employee.
- Immediately seek outside counsel or begin a plan, which should include preservation of any relevant documents and emails, within your Human Resources Department to respond to the Charge.
- Fire the employee or provide negative references if the Charge is from a former employee. How dare they accuse your company of discrimination!
Correct Answer: C. The first step when you receive a Charge of Discrimination is to notify your outside counsel and let them advise you on next steps. If you are handling the Charge in-house, begin to implement a plan to respond to the Charge by the deadline set forth in the Notice of Charge of Discrimination. If you have an insurance policy that covers employment-related issues, you should notify your insurance company as well. Part of your plan should include not only gathering existing information related to the allegations in the Charge, but also putting a litigation hold in place that will preserve all documents, including electronically stored information, e.g., emails, that relate to the Charging Party and his or her allegations.
2. Now that you have provided a Position Statement to the EEOC in response to the Charge of Discrimination, you have not heard anything from the EEOC for over six months. What should you do?
- Continue to wait. It can take the EEOC months to issue a determination or otherwise respond to your Position Statement.
- Call the EEOC and demand that it issue a determination on the Charge of Discrimination.
- Close your file. If it has taken the EEOC this long to respond, the Charge probably will not amount to anything.
- Send the EEOC additional negative information about the Charging Party to help grease the wheels.
Correct Answer: A. As mentioned in the opening paragraph of this article, the EEOC is swamped with Charges of Discrimination. More often than not, the Charge of Discrimination you received and the Position Statement you provided is not at the top of the EEOC’s priority list. Be patient. The EEOC will eventually respond. If not, and if the Charging Party has retained counsel, the Charging Party’s lawyer will request that the EEOC issue a Dismissal and Notice of Rights so that the Charging Party can bring a lawsuit.
3. A few months after submitting your Position Statement, you receive a request for information from the EEOC investigator requesting additional information regarding the Charge of Discrimination or the company. What should you do?
- Panic. If the EEOC is requesting additional information, your Position Statement was not good enough, and the EEOC is probably going to issue a cause determination.
- Respond to the EEOC request for information, within reason.
- Ignore it. The EEOC has the information it needs and can make a determination based on information you provided in your EEOC statement.
- Give it to the Charging Party’s supervisor to complete, even though the Charging Party’s supervisor, at this point, has not been involved in any interaction with the EEOC.
Correct Answer: B. Err on the side of responding to the EEOC investigator. Remember, this is the person who is going to determine whether to issue a cause determination against your company. However, if the EEOC investigator is asking the company for wholly irrelevant information going back 30 years and the Charging Party only worked for the company during 2013, feel free to object and provide the requested information for the years 2012 and 2013.
4. You receive a call from the EEOC investigator informing you that they are leaning toward issuing a cause determination. The investigator gives you two options: participate in the EEOC conciliation process or accept the cause determination. What do you do?
- Cave in. If the EEOC’s mind is made up, accept conciliation, which almost always includes putting the Charging Party back to work.
- Buck up. Tell the EEOC investigator to bring on the cause determination. You know you’re right and you’re not afraid of no stinkin’ cause determination.
- Ask the EEOC investigator why they are leaning towards a cause determination and try to persuade them that a cause determination is not warranted.
- Don’t talk to the EEOC investigator. They’re probably just trying to get information to help the Charging Party’s case.
Correct Answer: C. While rare, sometimes the EEOC investigator will give you a heads up that they are about to enter a cause determination against your company. Remember, however, that the EEOC is theoretically a neutral agency that is simply trying to make a determination of whether facts exist to warrant a cause determination. Sometimes, the EEOC needs a few more facts and a bit of persuasion to convince them not to issue a cause determination. There is no harm in acknowledging the investigator’s reasons for leaning towards a cause determination and then attempting to inform them of additional facts that might alter the decision to be in your company’s favor.
5. You have received a Dismissal and Notice of Right to Sue from the EEOC. The EEOC concluded that it could not determine whether a violation of the discrimination statutes occurred. What do you do?
- Shout Hurray! through your offices and post a copy of the Dismissal in the break room to remind employees that this is what happens when they mess with you.
- Close the file. The EEOC has not found in favor of the Charging Party, so no risk of exposure to the company.
- Call the EEOC and tell the investigator it has made a mistake. It should have found no violation of statutes, rather than determining that it could not determine whether a violation occurred.
- Keep the file open. The employee still has an opportunity to file a lawsuit against the company.
Correct Answer: D. An employee has 90 days from the date he or she receives the Dismissal and Notice of Right to Sue to bring a lawsuit based on an alleged violation of discrimination statutes covered by the EEOC. Note that certain employees can bring other lawsuits (e.g., section 1981 discrimination lawsuits) without filing a Charge of Discrimination, so even if the 90 days has passed, the Charging Party might still be able to bring a timely lawsuit against the company.