This article is the first in a two-part series and provides an overview of the Equal Employment Opportunity Commission (“EEOC”) administrative process. The second article will appear in our summer newsletter and explain how to prepare a response to an EEOC charge.
It is bound to happen sooner or later-your morning mail contains a notice from EEOC informing you your company has been accused of employment discrimination by a current, former, or prospective employee, and the agency wants you to provide a lot of information and documents. If it is the first time you have received such a notice, a basic understanding the administrative process will go a long way to keeping your blood pressure in check, and helping you evaluate about how best to respond.
Both federal and Texas law prohibit discrimination in employment on the basis of race, sex, age, disability, national origin, religion and color, and the EEOC and the Texas Commission on Human Rights (TCHR), respectively, are the administrative agencies charged with responsibility to enforce these laws. Filing a timely charge of discrimination is, generally, required before a person can file a discrimination lawsuit. To be "timely," the charge has to be filed either with the TCHR within 180 days of the date of the alleged discrimination, or with the EEOC within 300 days.
The EEOC is required to conduct an investigation of the charge. Often, however, the initial notification will includes an invitation to participate in informal, non-binding mediation. Mediation allows the parties to come together in a confidential, informal setting to attempt to resolve the matter before it potentially spirals out of control. Although you are not obligated to agree to mediation, in appropriate cases-particularly if the complainant is not yet represented by a lawyer-mediation may provide an inexpensive opportunity for early resolution of a charge. Additionally, even if mediation does not resolve the matter, you may learn additional information from the complainant during the course of the mediation which will better enable you to effectively respond to the charge.
If you do not participate in mediation, or if the charge is not settled at mediation, you will need to respond to the charge. This usually involves providing the EEOC with a "position statement" and specific information and documents requested by the agency. The EEOC will use the information provided along with other information gathered during its investigation to evaluate the merits of the charge. The EEOC may request additional information. It may also want to conduct an "on site investigation," sending an investigator to your facility to interview other employees or examine documents. Once the EEOC has concluded its investigation, it will issue an administrative determination either concluding reasonable cause exists to believe discrimination occurred, or stating it was unable to conclude discrimination occurred. If it concludes discrimination occurred, it will enter into "conciliation" in an attempt to get the parties to resolve the claim without a lawsuit, and will generally expect the employer to provide "full relief," i.e., back pay, reinstatement, and other relief. If the matter is not resolved through conciliation, or if the EEOC could not determine discrimination occurred, it will issue a "right-to-sue" notice to the complaining party, who then has 90 days in which to file a lawsuit if they choose to do so. The EEOC also has the option to file suit on behalf of the complainant.
Generally, it is best to take the time to prepare a comprehensive, persuasive response to the charge, explaining in detail why there has been no discrimination. First, "stone-walling" is not an effective tactic. Ultimately the EEOC can force full disclosure of the requested information through a subpoena. Second, a persuasive position statement may allow the EEOC to conclude its investigation without the need for requesting additional information, documents, or an on site investigation. Third, you do not want the EEOC to find "cause." Not only will a "cause" finding prompt further administrative action or a possible lawsuit by the EEOC on behalf of the complainant, but an EEOC cause finding is admissible in evidence against the employer if the complainant files suit. Finally, if a lawsuit is filed, the employee will be entitled to obtain a copy of the response you filed with the EEOC. Accordingly, you want the response to adequately and appropriately state your company's position. If in a later lawsuit you take a different position, or offer reasons for the adverse employment action different from what you explained to the EEOC, the plaintiff's lawyer will use the EEOC response to impeach the credibility of your position in the lawsuit. The response should be drafted by a person experienced in human relations matters, in consultation with legal counsel, or by an attorney. They will best understand the type of information most useful to the EEOC and most persuasive.
Although discrimination charges should be taken seriously, they need not be cause for unnecessary alarm. Most EEOC charges do not result in a finding of cause, or in a lawsuit.
For more information about EEOC administrative discrimination charges, please visit the Employer's Quick Start menu at the EEOC website - select Small Business Information. This section advises employers as to what they can, and should, expect when an EEOC charge is filed against them.
Part two of this article: Responding to a Charge of Discrimination.