At some point in time, many employers will have to deal with the situation where a current or former employee files a charge against the employer with the Equal Employment Opportunity Commission (“EEOC”). It is important for employers to know the proper way to handle such charges. When an EEOC charge is handled well, employers often are able to resolve the charge before a lawsuit is filed.
The EEOC is a federal administrative body that enforces the following statues: Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the Equal Pay Act of 1964 (“EPA”), the Americans with Disabilities Act (“ADA” and the Rehabilitation Act of 1973, the Genetic Information Non-Discrimination Act of 2008 (“GINA”), and the Pregnancy Discrimination Act.
The filing of a charge with the EEOC is an administrative remedy and is a prerequisite to filing suit in federal court under any of these statutes. An EEOC charge must be filed within 300 days of the alleged discrimination, and some states have a shorter limitations period of 180 days. Charges are assigned to an investigator in an EEOC field office. That investigator represents the federal government, not the individual bringing the charge. The government’s role is to eradicate discrimination and this is the lens through which the investigator will view each charge.
An employer’s response to receiving an EEOC charge is significant. First and foremost, an EEOC charge should never be ignored. Employers are advised to notify counsel immediately in order to receive guidance throughout the EEOC process. The investigator typically will ask the employer to submit a written position statement and supporting documents. Documents that may be requested include things like personnel files, relevant e-mails, and policies of the employer. The position statement is the employer’s opportunity to argue their version of the facts and make their case, so it is imperative that this document is well-prepared and has a strong legal basis, including support by case law, in order to be effective. The EEOC investigator also may request an on-site visit to the employer’s place of business and may wish to interview witnesses. Counsel should certainly be consulted well in advance of such a visit and should be present for any such interviews.
The EEOC also typically offers the possibility of mediation at the time it notifies the employer of the charge of discrimination. If both parties agree to mediation, then the EEOC will schedule the mediation before a mediator employed by the EEOC or a private attorney who has volunteered to serve as a mediator. Generally, mediation with the EEOC is worthwhile for the employer. It is a confidential and cost-effective way to possibly resolve a claim. It also gives the employer the opportunity to learn things about the charging party’s position that might otherwise not be revealed. Mediation gives the charging party an opportunity to have their case heard, and this is often the validation that the charging party seeks in pursuing a claim. Accordingly, about 80% of claims are settled in mediation.
An EEOC charge can be worrisome for an employer, but guidance from counsel in responding and cooperating with the EEOC can help the employer state their version of the facts and even resolve claims before they have an opportunity to grow into litigationBack to news