Unless a business owner or manager has been subject to an EEOC investigation previously, the first emotions upon learning that the business is the defendant against an employee complaint are usually anger, fear, and confusion. The bad news is that the business is involved in a serious investigation by a Federal agency. The good news is that, at the first stage of the EEOC process, the investigation is simply that, an investigation. This article will provide information on what to expect and how to effectively manage an EEOC investigation.
The EEOC is an agency that enforces federal employment discrimination laws. It is illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy and potentially gender identity and sexual orientation), national origin, age (40 or older), disability, or genetic information. It is also illegal to retaliate against an individual who engages in a protected activity, like filing a charge with the EEOC. While filing a charge with he EEOC or a state agency is a necessary first step to filing a lawsuit, persons doing so also hope to gain support for their claim by the agency, which may prosecute on the employees’ behalf. First the EEOC will conduct an investigation.
Many times after the investigation is completed, the EEOC cannot conclude that there is “reasonable cause to believe the discrimination occurred” and therefore the complaint is dismissed with a notice of rights to the employee. This means that the plaintiff must undertake a suit alone within 90 days if he or she is going to proceed. This is significant because many times job applicants or employees either do not have the funds to sue on their own or will not want to expend the funds to sue on their own—effectively meaning a determination of this sort is the end of the claim. If the EEOC does, however, find reasonable cause to believe the discrimination has occurred, then the EEOC may choose between attempting to have the parties undergo conciliation, issuing a Right to Sue letter, or filing a suit on behalf of the plaintiff.
In its investigation, the EEOC may request certain materials and even a site visit. It is incredibly important to be helpful and respectful to the EEOC investigator at all stages of the investigation. An employer will also have the opportunity to write a position statement, explaining its version of events. This statement should be carefully drafted. Exhibits may be attached to the position statement, which can sometimes result in the EEOC investigator requesting fewer documents, if any. The position statement needs to be thorough and accurate, and often businesses opt to have their counsel complete these statements. The position statement can be instrumental to a business in gaining the support of the EEOC, but a poorly drafted statement that is inaccurate, disrespectful, or dishonest will almost certainly get the attention of the EEOC investigator in a negative way.
The EEOC may also request certain employment documents, documents referred to in the charge or position statement, and any other documents at issue. The EEOC investigator may require a site visit, as is becoming increasingly more common. This helps the investigator assess the space and may include interviews with involved parties and management. These interviews may seem daunting, and preparation is essential, but it is important to remember that the investigator is there to gather information. Employer representatives should be prepared to answer questions within their job duties about the employment process, the employment practices, and the disciplinary process. Interviewees should be honest about the charge at issue, but also informed that volunteering extraneous information that the investigator never questioned is never a good idea.
These investigations concern laws which involve complex burden-shifting doctrines and bodies of precedent involving a daunting number of factually nuanced cases. Often times EEOC claims involve more than one type of discrimination or protected activity. Sometimes employers may not be liable based on the original discriminatory claim but subsequently retaliate against the individual for filing a claim or another protected activity and thereby become liable for retaliation. If feasible, counsel should be contacted early in the process, to avoid potential pitfalls down the road.
The best way to come out of an EEOC investigation on top is to prepare long before a charge has even been filed. Comply with the necessary federal laws and mandates. Educate your managerial staff and human resources professionals about the law and regularly conduct internal reviews to ensure that the business is not engaging in any discriminatory practices. Clearly state the business’s nondiscriminatory policies and adhere to them. Finally, ensure documentation is being completed carefully and thoroughly whenever there are any potential issues. Human resource professionals and managers should be in the habit of documenting interactions with employees and job applicants as soon as they happen. When an employer is compliant, the process can still be nerve-wracking, but the investigation results should reveal the truth.