Last week, we spoke at the Florida Public Human Resources Association’s Annual Conference at the Waldorf Astoria in Naples, Florida. For the first of our two sessions, we were asked to present on EEOC charges which, as you all probably know, is a pretty timely topic given some of the recent record statistics (almost 100,000 charges filed in 2011 alone!).
If your company has not received an EEOC charge recently, consider yourself lucky. Since we know so many of you have dealt with or will deal with EEOC charges, we thought we would post some tips on how to respond from last week’s presentation. In Part One, we will review the basics of what you should do when you receive the charge. Next week, in Part Two, we’ll offer some tips on how to prepare an effective position statement.
Side note: Though the focus of this post is on EEOC charges, the same basics apply to charges filed with the Florida Commission on Human Relations (FCHR).
First up: The EEOC Came Knocking: What Should I Do?!
1. Do not ignore the charge. Don’t laugh — we have seen this happen! The charge will not go away if you ignore it. The EEOC will move on and investigate anyway, with only the employee’s side of the story in the file.
2. Notify your Employment Practices Liability (EPL) carrier. This is an extremely important step. Do this in writing, so you have a record of the notification. Not sure whether you have EPL coverage (Hint: it’s that coverage with the giant deductible!)? Call your agent. Better safe than sorry.
3. Contact counsel. While you are not required to have representation at this stage in the process, having the assistance of qualified employment counsel can make a huge difference. If cost is an issue, prepare the bulk of the response yourself, but make sure you have counsel review it before it is submitted. There are often critical legal defenses, arguments, etc. that should be raised, and lawyers are trained to spot these items.
4. Determine and calendar deadlines. You will typically have several weeks to submit your response. If you need additional time to prepare a thorough response, ask for an extension. The EEOC is usually pretty generous with extensions, as long as the request is reasonable.
5. Check to see if the charge is timely. Remember, in Florida, the charge must be filed with the EEOC within 300 days of the alleged discriminatory act. If the charge is filed with the FCHR, the charging party must file within 365 days.
6. Notify affected managers/decision-makers. Identify those managers/decision-makers who were directly involved with the allegations in the charge. Let them know the company received a charge, and he/she will be called upon for information. Limit this to those managers/decision-makers who are actually involved — don’t make a company-wide announcement. See #7 and 9 for additional info on manager/decision-makers.
7. Assemble and preserve documents. Gather critical documents, like personnel files for the charging party and any alleged comparators, disciplinary documents, etc. Make sure you instruct managers, decision-makers, IT personnel, or anyone else who may have relevant documents, including emails, to preserve them — the last thing you want is to have to explain missing or, worse, destroyed, evidence.
8. Plan internal investigation. This could take up an entire blog post in itself. Perhaps the most important advice we can give you is to do it quickly. The sooner you investigate, the better, especially if the charge was the first notice you have of the alleged discriminatory action. Assistance of counsel can be critical during an investigation.
9. Prevent retaliation. If the charging party is still employed, make sure he/she is not retaliated against in any way. Remember, even if the underlying claim of discrimination or harassment has no merit, if you take adverse action against the charging party because he/she has filed a charge, you can hand him/her a valid retaliation claim. This doesn’t mean the employee now has immunity from disciplinary action or even termination, but you should take special care in these situations. Even if the adverse action was not because of the charge, be mindful that the timing can look pretty suspect. This is an important reason to be cautious with how many managers/decision-makers you notify about the charge. Though it’s not an iron clad defense, if the charging party’s immediate supervisor does not know about the charge (protected activity), the employee may not be able to show a causal connection between the charge and any adverse employment action he/she suffers after filing the charge. Keeping information limited to those who truly need-to-know is critical, particularly when the charging party is still employed.
10. Consider mediation. In most EEOC charges, the EEOC will offer pre-investigation mediation. Like investigations, this could take up an entire post in itself. Briefly, there are many pros to mediation. It can be speedy, cost-effective, and, if settled, gives you certainty with respect to resolution of the charge. Though not all cases are well-suited for mediation, we tend to recommend it in the majority of charges. Legal counsel can help you evaluate whether mediation is an attractive option for your particular charge.
There you have it — a few basic tips on what to do when you receive an EEOC charge. Check back next week for tips on how to prepare an effective position statement.