What Happens When an EEOC Charge Is Filed?
A very low percent of charges filed with the EEOC result in “cause” findings. How does an employer ensure that it isn’t included in that percentage? The first line of defense is to continually monitor all of your policies, procedures and personnel with the goal of providing equal opportunity to all. Yet, that will not always stop a charge.
Referral back to employer. On March 24, 2003, the EEOC announced the implementation of a voluntary mediation pilot program in which private sector discrimination charges filed with the EEOC may be referred back to a participating employer’s internal dispute resolution program. Under the EEOC pilot, a charging individual may choose to have the charge held in suspense for up to 60 days in order to provide the charging party and the employer an opportunity to resolve the dispute using the employer’s existing dispute resolution program. If the dispute is resolved through the employer-provided program, the charge will be closed. If the dispute is not resolved, the EEOC will process the charge.
ADR program mechanisms must meet the following criteria:
- Participation by its employees is voluntary;
- The employer has an established program;
- The program has clearly written procedures;
- It is free to the employee;
- The program addresses all claims and relief under EEOC-enforced statutes; and
- Settlements obtained must be in writing and enforceable in court.
When launched on March 3, 2003, by the Philadelphia District Office, four Fortune 500 companies had agreed to participate in the initial phase of the Pilot. Other agency field office will gradually be phased into the pilot over the coming months.
Develop a plan. Dealing with an EEOC charge is an event that most employers should be prepared for. It requires a systematic approach and entails development of a strategy. Employers should know what to expect and how to respond. The following considerations should be part of the employer’s plan.
Acknowledge receipt of any charge. An organization will usually receive notice of an EEO charge within ten days of its filing. In the case of charges that are “dual-filed” with both the EEOC and a state or local fair employment practices agency, an organization can expect to receive two notices. Acknowledge receipt of the notice by writing a letter to the appropriate agency or agencies.
Familiarize yourself with the charge. Know what laws are involved, the basic facts, and what the organization is accused of.
Find out if the charge is Category A, B, or C. It will be helpful in responding to a charge if you know what priority the EEOC has placed on the charge. If the notice does not indicate a charge’s classification, ask.
Determine legal counsel’s role. Some organizations give HR managers the responsibility for handling EEOC charges while others hire labor and employment attorneys to do the job. This is a strategic decision. Some people feel that outside attorneys should be avoided at this stage because they are more concerned about litigation. Others feel that the filing of an EEOC charge in effect initiates adversarial proceedings that affect the employer’s legal rights. Consider the facts of the charge. It may be wise to bring in counsel if the charge is a pattern or practice charge or a high level executive is accused. Legal counsel can also play a valuable role as a resource to be consulted as needed throughout your investigation and in reviewing your position statement.
Check for possible defenses. An EEOC charge may be dismissed early in the investigation if the EEOC lacks jurisdiction or if the charge was not filed in a timely manner. Be aware of possible defenses.
Investigate the allegations. Charges should be thoroughly investigated immediately. Interview the complainant’s supervisor, the accused, the accused’s supervisor and any witnesses. Employer policies should be examined to determine if they have been consistently and uniformly applied. Statistical analysis can be done to reveal any disparate impact caused by a policy. Gather relevant documents such as performance reviews or disciplinary notices. Treat the complainant normally and advise the supervisor to do so too.
Decide on your position. Evaluate your position and decide on a course of action. Consider settlement if your investigation reveals the possibility of a violation.
Designate a contact. Designate only one person to deal with the EEOC, whether within the organization or the organization’s attorney. Instruct HR personnel and line managers that any contact from agency personnel should be referred to the designated contact.
Establish rapport with the investigator. Get to know the investigator and establish a working relationship. Be reasonable and nonhostile. Make every attempt to comply with reasonable requests.
Compose a position statement. The position statement should be clear, concise, accurate and persuasive. This is the employer’s first and best chance to convince the EEOC that the employer did not engage in unlawful discrimination.
Reposted with permission from Wolters Kluwer.
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