“Guests, like fish, begin to smell after three days old.”
- Benjamin Franklin
You know the drill. An employee or ex-employee files a discrimination charge against your company with the Equal Employment Opportunity Commission (“EEOC”). You file a position statement denying the allegations and then wait. You hear nothing and hope that no news is good news. But, as they say, hope is not a strategy.
Instead, you are introduced to the EEOC’s new, more aggressive investigation strategy. No longer willing to accept a company’s written response at face value, the EEOC now frequently demands on-site visits to interview witnesses and gather information.
As one can imagine, these on-site fishing expeditions visits offer little “upside” to the company. To avoid floundering like a fish out of water, one needs to be prepared. Here are just a few things you can expect to see and hear during an EEOC on-site visit:
- The Tour. The EEOC Investigator almost always requests to take a tour of the facility before conducting witness interviews. Knowing this, the company should make sure there are no potential OSHA violations that could be spotted. In addition, confirm the location(s) where the company posts the required federal labor and employment law posters, and double-check to make sure all of them are actually posted; the Investigator will want to verify this. Finally, have someone who is familiar with the facility and articulate but not verbose lead the tour.
- Probing the Company’s Story. Recall that the EEOC Investigator typically comes on-site after the company has filed its position statement. The Investigator will question witnesses to see if their recollections match the facts the company presented in its position statement. Thus, every potential management witness should read the Discrimination Charge and the company’s position statement at least a couple of times before the on-site in order to [re-]familiarize themselves with the facts of the case.
- Questions about Employment Law Knowledge & Training. EEOC Investigators will interview Human Resources (“HR”) personnel who are involved in the case. Investigators often ask HR representatives: (1) about their general knowledge of employment laws; (2) whether they have a college degree in the HR field; (3) whether they have recently attended HR seminars or conferences; and (4) what training they have provided to company employees on topics such as discrimination and harassment. As “ignorance of the law is no excuse,” it is important that the HR representative comes across as knowledgeable of the anti-discrimination laws and the employer’s obligations thereunder.
- Selective Note Taking. Watching the EEOC Investigator take notes of witness interviews will test one’s patience, as it often seems that the only statements being written down are those not helpful to your case. All of the good points your witness is making are seemingly ignored. If you observe this occurring, you or your counsel may need to re-emphasize key points to the Investigator to give him or her the “equal opportunity” to write them down. You do not want the Investigator leaving with a distorted record of the facts.
Ultimately, your goal is to have your “uninvited guest” finish his/her visit and leave that same day. Anything longer would really stink.