Discrimination Charges Part II: I Just Received a Notice that a Charge of Discrimination has been Filed Against My Company. What Should I Do?
By Kevin M. Mosher • May 22, 2015
After you have received the charge it is critical that you prepare a thorough response and present it to the agency by the due date. Some states require verified answers to the allegations, which are styled more like answers to a lawsuit, while other states and the EEOC require a responsive statement and argument to the allegations. Untimely submission of your response could result in a finding of liability (e.g. Illinois), so it is critical that you respond fully and appropriately by the deadline.
Whatever agency you are responding to, that response has legal consequences that could result in adverse findings against the company if done poorly. Companies will often respond to these charges on their own without constructing appropriate legal arguments, only to be sued later. At that point legal counsel will become involved and may want to craft a more defensible argument, which becomes problematic if the company has already argued something different in responding at the administrative level. The poorly conceived answer to the administrative agency’s investigation might, therefore, result in putting the company’s defense at risk; a situation which is almost always avoidable if properly handled by legal counsel at the beginning. For this reason alone legal counsel should be engaged to respond on your behalf to respond to any agency’s charge of discrimination.
Each agency will investigate at its own pace and through its own method, but typically there is a complaint, followed by an answer and/or a position statement. The investigator is assigned and may want to interview some key people. In Illinois the state Department of Human Rights will set a fact-finding conference between the investigator and the parties, but more common is for the investigator to simply conduct interviews with the key witnesses as part of the investigation into the efficacy of the charges of discrimination. Information is gathered and the agency will determine internally whether to expend its resources prosecuting the complainant’s allegations of discrimination, or if it will give the individual a right to sue on her claims. The latter is effectively a dismissal by the agency of the allegations and is generally the welcomed result from a charge of discrimination. Thereafter, the individual, if issued a right to sue, will have a period of time in which to bring her claims to the appropriate court in a lawsuit. If the agency decides to pursue the allegations on behalf of the individual they likely will seek settlement first, but at any point they may bring the matter to an administrative law judge or they may directly sue the company on behalf of the employee in state or federal court (depending on the agency).
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