Here are key things to keep in mind when dealing with a discrimination charge:
During the EEOC (Equal employment opportunity commission) investigation:
Three Principles: If a settlement isn’t reached, the EEOC will do its investigation. Here there are three principles to follow: First ensure that there is information in the EEOC’s file demonstrating lack of merit of the charge. Often the best way to do that is not by answering the EEOC’s questionnaire, but by providing a detailed statement describing the firm’s defense in its best and most persuasive light. Second, limit the information supplied to only those issues raised in the charge itself. For example, do not respond to an EEOC request for a breakdown of employees by age and sex if the charge only alleges sex discrimination. Third, get as much information as possible about the charging party’s claim to ensure that you understand the claim and its ramification.
Meet with Employee: Some experts advise meetings with the employee who made the complaint to clarify all the relevant issues. For example, ask: What happened? Who was involved? When did the incident take place? Did it affect the employee’s ability to work? Were there any witnesses? Then prepare a written statement summarizing the complaints, facts, dates, and issues involved and request that the employee sign and date it?
EEOC Authority: EEOC investigators are not judges and aren’t empowered to act as courts. They cannot make findings of discrimination on their own, but they can make recommendations. If the EEOC eventually determines that an employer may be in violation of a law, its only recourse is to file a suit or issue a Notice of Right to Sue to the person who filed the charge. However, the investigator’s recommendation is often the determining factor in whether the EEOC finds cause, so it is usually best to be courteous and cooperative (within limits).
Submitting Documents: With respect to providing documents to the EEOC, it is often in the employer’s best interests to cooperate (or to appear to cooperative). However, remember that the EEOC can only ask employers to submit documents and ask for testimony of witnesses under oath. It cannot compel employers to comply. If an employer defuses to cooperate, the commission’s only recourse is to obtain a court subpoena.
Position Statement: It may be useful to give the EEOC a position statement based on the employer’s own investigation. (In the past, some EEOC offices have based their own written conclusions on these). According to one management attorney, employers’ position statements should contain words to the effect that. We understand that a charge of discrimination has been filed against this establishment and this statement is to inform the agency that the company has a policy against discrimination and would not discriminate in the manner charged in the complaint. Support the statement with some statistical analysis of the workforce, copies of any documents that support the employer’s position, and / or an explanation of any legitimate business justification for the decision that is subject of the compliant.
During the Fact Finding Conference:
As part of the investigation, there will be a fact finding conference. If the employer wants to settle, the fact finding conference can be a good place to negotiate but there are four things to beware of.
1) The records: The only official record is the notes the EEOC investigator takes, and the parties can’t have access to them to rectify mistakes or clarify facts.
2) Attorney: The employer can bring an attorney, but the EEOC often seems to go out of its way to tell employers that an attorney’s presence is unnecessary.
3) Information: These conferences often occur soon after a charge is fled, before the employer is fully informed of the charges and facts of the case.
4) Witnesses: The parties may use witnesses’ statements as admissions against the employer’s interests. Therefore, before appearing, witnesses (especially supervisors) need to be aware of the legal significance of the facts they will present and of the possible claims the charging party and other witnesses may make.