Tuesday, April 6, 2010

Do you know? What employers need to know about EEOC investigations

You’ve just received notice from the EEOC (or its state equivalent, the OCRC, for example) that an employee has filed a charge of discrimination against you. What happens next is often confusing to businesses, and mistakes can have serious consequences in later lawsuits.

Let’s start with the basics – what happens when a charge has been filed against you?

  1. The EEOC will notify you that a charge of discrimination has been filed against you. The charge packet will include the name and contact information of the investigator assigned to your case.

  2. The charge will likely include a offer to submit the case to voluntary mediation. Mediation can be useful for two purposes – to see if you can resolve the charge early and cost-effectively, or to obtain early informal discovery from the charging party.

  3. Absent mediation, the case will proceed to an investigation. During the investigation, you will be required to submit a written statement of position. This document is your chance to tell your side of the story. It is the most critical piece of the agency investigation. More on this in a bit.

  4. The investigation will may also include a request for information (documents), a request for an on-site visit, or contact information for witness interviews of management and non-management personnel. Do not assume, however, that you have to turn documents over, open up your business, or make people available simply because the agency is asking. The requests still must comply with basic notions of relevancy and discoverability.

  5. Once the investigator has completed the investigation, the EEOC will make a determination on the merits. If EEOC determines that there is no reasonable cause to believe that discrimination occurred, the charging party will be issued a letter called a Dismissal and Notice of Rights that tells the charging party of the right to file a lawsuit in federal court within 90 days from the date of receipt of the letter, with a copy to the employer.

  6. If EEOC determines there is reasonable cause to believe discrimination has occurred, both parties will be issued a Letter of Determination stating that there is reason to believe that discrimination occurred and inviting the parties to resolve the charge through an informal conciliation process. If conciliation fails, the EEOC has the authority to file a lawsuit in federal court or issue the same Notice of Right to Sue, releasing the employee to file his or her own lawsuit within 90 days. The process is differently with the OCRC, which ends with a formal administrative hearing and a right to appeal to common pleas court. Also, under Ohio’s civil rights laws the employee always has the right to bypass the agency and proceed directly into court.

There is an inclination within companies to go it alone in EEOC and other agency proceedings, believing that the expense of hiring an attorney is not justified at this early junction. I cannot more strongly caution against this urge.

As I said above, the statement of position is the critical piece of the agency investigation. It not only tells your story, but it locks in your story because it is discoverable by the employee in a later lawsuit. One of the easiest ways to create a jury question on the issue of pretext and lose a summary judgment motion is to give a reason for termination different than that set out in your EEOC position statement.

You should assume that every charge – no matter the merit – will turn into a lawsuit. Employment litigators can interview witnesses, review policies and personnel files, and make decisions as to your best defense. Not involving an attorney as early as your first receipt of the charge of discrimination can cost valuable insight into your best effort to win the case.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.