Employers are Wise to Consult with Legal Counsel When Facing an EEOC Investigation
The Equal Employment Opportunity Commission (EEOC) enforces federal laws prohibiting discrimination in the workplace. The agency also oversees and coordinates all federal equal employment opportunity regulations, practices, and policies. In addition to laws that prohibit discrimination, legislation enforced by the EEOC includes those that provide for equal pay and mandate equal access to employment for qualified individuals with disabilities. When discrimination charges are filed against an employer, it is always wise to consult with an experienced labor and employment attorney before the EEOC begin their proceedings.
What Does an EEOC Investigation Entail?
Investigations conducted by the EEOC are a process by which the agency determines if there is reasonable cause to believe that discrimination occurred in the workplace. An EEOC investigation will require the involvement of the employer, the employee who filed the complaint, and witnesses who can provide relevant and meaningful information. Investigations include the exchange of written responses, interviews, and document analysis. An EEOC investigation can last up to ten months and be a lengthy and expensive procedure for the employer.
The Stages of an EEOC Investigation
When the EEOC initiates an investigation, the process includes the following stages:
· An Employee Files a Charge
A formal investigation begins when a current or former employee or an applicant files a charge with the EEOC. Charges can be filed by telephone, in person at an office, online, or by mail. The charges filed against the employer must be made within 180 days of the last discriminatory act. Charges require three pieces of information:
ü A summary of the incident or incidents
ü Details about the employer
ü The date of the previous violation
The charge may be assigned priority status if the preliminary facts indicate a violation occurred. But charges may also be dismissed at any time if the EEOC concludes the incident did not violate any of the federal laws the agency enforces.
· The EEOC Notifies the Employer
If the EEOC does not immediately dismiss the charge filed against the employer, this means they have determined that there is a basis for the proceeding. The EEOC then has ten days to send a notice to the accused. The notice will explain that a charge has been brought against the organization and provide the employer with details outlining the allegations. Receiving notice does not mean that the employer has violated the law; it just means that a complaint of discrimination has been filed. When the employer receives the letter, they should begin by contacting an experienced labor and employment attorney and arrange a consultation as soon as possible to discuss the details of the matter and to strategize about next steps.
The Employer Acknowledges the Charge
After receiving notice from the EEOC, the employer must send a letter to the agency with the name of the attorney who will be handling the matter and responding to requests from the EEOC. Once this letter is received, the EEOC will launch a formal investigation. The communication states that the employer is aware that a charge has been filed, and an investigation is about to commence. The employer does not admit to any wrongdoing by acknowledging the charge. At this stage, the EEOC will inform the employer if the claim is eligible to be resolved via an alternative method of dispute resolution, such as mediation. Mediation may provide an opportunity for the company and the complainant to reach a mutually beneficial outcome that is often faster and less expensive than going to trial.
The EEOC Initiates the Investigation
When involved in an EEOC investigation, the employer will share their version of the incident in what is formally called a position statement. As the respondent, the employer typically has 30 days to submit the position statement and include all relevant and supporting documents.
The EEOC Makes a Determination
Based on all the facts obtained during the investigation, the EEOC will determine whether sufficient evidence exists to believe a violation occurred. If the investigation does not provide sufficient reasonable cause, the EEOC will dismiss the charge and close the case. If the case is dismissed, the plaintiff has a right to file a lawsuit against the employer regardless of the EEOC findings, but the suit must be filed within 90 days.
If the EEOC finds sufficient reasonable cause, the agency will draft a determination letter containing a summary of its decision and the reasons that support it. The EEOC is legally required first to attempt conciliation to remedy the incident.
What is Conciliation?
The EEOC is bound by Title VII to engage in a process called "Conciliation," which is an attempt to resolve a charge before the agency can bring an enforcement action against the employer. The purpose of the conciliation process is to encourage informal resolution without forcing the parties to resort to litigation in federal courts. EEOC's conciliation procedures have been designed to establish uniformity, increase transparency, and promote cooperation. Conciliation occurs after the agency has investigated the allegations against the employer and found reasonable cause to believe the company has engaged in illegal practices. If the charge is not resolved at conciliation, then the EEOC can proceed to litigate the question of an employer's liability for alleged discriminatory conduct.
EEOC Will Conduct an Impartial Investigation
When a claim regarding discrimination is filed against an employer, the EEOC may appear to be on the employee's side. But the professional EEOC investigator intends to gather the facts and conduct an impartial investigation. Employers concerned about bias can mitigate their risks during an EEOC investigation by working with the investigator and being professional, courteous, cooperative, and responsive.
Cooperating with the EEOC Investigator
When a claim alleging discrimination is filed against an employer, the employer must bear the practical burden of proof showing that they acted appropriately. Under these circumstances, the employer and their attorneys must cooperate and communicate with the EEOC during the investigation. Proactively communicating with the EEOC investigator will build credibility for the employer and their legal representative.
The EEOC Values Fairness
The employer and their attorneys are wise to acknowledge the authority of the EEOC. EEOC investigators have been trained to identify the relevant issues associated with workplace allegations, and most conduct their investigations thoroughly and without impartiality. Although the EEOC may appear to have a pro-employee bias, it is the investigator's job to determine the facts of the matter, discover the truth, and apply the principles of fairness to the employer and the employee.
Avoiding Litigation
Although litigation is unusual in matters involving discriminatory behavior in the workplace, the EEOC has been known to be a formidable adversary. When workplace issues involving the EEOC become litigious, these matters generally involve class action lawsuits, cases regarding religious discrimination, or acts of retaliation against an employee by an employer.
Retaliating Against an Employee is Against the Law
It is unlawful for an employer to retaliate against an employee who files an internal discrimination complaint. When an employer makes the mistake of retaliating against an employee for engaging in activities protected by anti-discrimination laws, the repercussions in a court of law can be significant.
Using Alternative Methods of Dispute
Although not every charge is suitable for mediation, there are cases where the EEOC will agree to use alternative dispute resolution methods. EEOC mediators are generally fair and willing to work with employers seeking to resolve a workplace dispute. The EEOC will explain its findings, share the evidence with the parties involved, and attempt to negotiate a mutually agreeable resolution, which may include monetary and injunctive relief.
Delaying an Investigation
While attempting to delay the resolution of a matter is sometimes a legitimate strategy used to reduce liability or achieve specific goals, the use of dilatory tactics is not generally not wise when dealing with the EEOC. Employers must understand that once an employee files a charge with the EEOC, the statute of limitations on the federal anti-discrimination claims stops running until the EEOC disposes of the case. Employers should also be aware that even though the statute of limitations stops, the accrual of back pay and employee benefits may continue. Attempts made by the employer to delay the EEOC's investigation could result in an even greater liability.
Working with the EEOC Investigator
Employers who attempt to unlawfully conceal witnesses, suppress evidence, falsify documents, threaten potentially adverse witnesses with discipline or discharge, lie to the EEOC, or engage in other improper activity should be aware that their actions could result in a potentially harmful outcome.
Seeking Resolution of the Legal Matter
Employers should always attempt to take appropriate actions when addressing issues regarding discrimination issues and take corrective action when problems arise. It is not unusual for employers to make mistakes in the workplace. However, if they are charged and realize they have not managed the situation appropriately, employers should seek to resolve the matter as soon as possible. The more quickly an employer responds to an issue in the workplace, the more likely they will experience a positive outcome when dealing with the EEOC.
Staying in Compliance with the EEOC
Employers are wise to keep abreast of their legal compliance by:
1. Paying close attention to jobs that may appear to be segregated by race or gender,
2. Keeping their EEOC and harassment policies up to date,
3. Having good policies, procedures, and processes in place for employees to file an internal complaint if they believe that they have been mistreated,
4. Providing practical management training on employee relations, discipline, discharge, discrimination, reasonable accommodation, retaliation, and harassment.
Providing All Relevant Information
Employers will often benefit by being courteous and professional with the EEOC investigators. Employers should also cooperate with investigators by providing all relevant background information and explaining their position. While employers should never underestimate the scope of this government agency, employers should not assume that they have done something wrong just because the EEOC is pursuing an investigation.
Seeking Legal Counsel As Soon As Possible
Whenever an employer is dealing with an EEOC charge, it is essential to seek the counsel of an outside attorney as soon as possible. It is never wise for an employer to attempt to handle even a seemingly insignificant EEOC charge without the assistance of legal counsel.
Protect Yourself, Your Business, and Your Employees
The takeaway from any investigation is that it can be dangerous for an employer to act on employee complaints without consulting with an experienced labor and employment attorney. Protect your organization by scheduling a consultation with Natalie Lynch from the Lynch Law Firm to discuss your concerns. Natalie understands that the facts are rarely straightforward in EEOC investigations, and it can be challenging to determine the reasonableness of any claim. Allegations of this kind can inflame the emotions of involved parties, and Natalie works to enable employers to protect themselves and their businesses. The Lynch Law Firm may provide the information you need to assess liability and remediate ineffective interpersonal dynamics within your organization.
If You Have Questions About an EEOC Investigation
If you are an employer who has legitimate defenses to a charge, the attorneys at the Lynch Law Firm are generally able to work with you to prepare position statements and assist with the EEOC investigation process, to have the EEOC dismiss the charge. If you have questions about an EEOC investigation, call Natalie Lynch. Natalie is the managing attorney of the Lynch Law Firm. She is a credentialed investigator and dispute resolution mediator with many years of experience working with businesses to help minimize employment risk factors. She is the only consulting and credentialed investigator in Central Texas who conducts third-party investigations into allegations of harassment, discrimination, hostile work environment, and other labor and employment issues. If you are an employer with questions about an EEOC investigation, call the Lynch Law Firm now.
Call the Lynch Law Firm Now for a Free Consultation
Call Natalie Lynch at the Lynch Law Firm now to schedule a free consultation. Please get in touch with us by phone at 512.298.2346 or by email.
Resources Used
Immigrant and Employee Rights Section | CRT | Department of Justice