How should your business respond to an EEOC charge?
Before filing a discrimination lawsuit against your company, an employee must first file a charge with the Equal Employment Opportunity Commission (EEOC) or the Texas Workforce Commission (TWC).
In many cases, the claim can and should be resolved at this stage before a lawsuit is filed against the company – many lawsuits are filed against companies because they failed to take the EEOC charge and their response to it seriously…
In this article, we will cover the basics of what you should do when you receive notice of an EEOC charge (or before you receive notice if you know it’s coming), including:
- How to prepare to defend against an EEOC charge,
- How to draft an effective position statement in response to an EEOC charge, and
- Actions your company can take that may prevent a lawsuit after an EEOC charge is made.
What is the EEOC?
The Equal Employment Opportunity Commission (EEOC) enforces federal anti-discrimination laws including discrimination based on a “person’s race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.”
Most employers with at least 15 employees are subject to federal anti-discrimination laws that apply to hiring, firing, promotions, workplace harassment, training, pay, and benefits.
When the EEOC receives a complaint, they investigate the allegations and make a finding as to whether discrimination occurred. If they determine that there was no discrimination based on their investigation and the business’s response, then the matter is over.
If the EEOC finds that discrimination did occur, they will attempt to settle the case if possible and, in some cases, file a lawsuit against the company.
Responding to an EEOC Charge: Immediately Begin an Investigation
An EEOC lawsuit, or even just an allegation of discrimination, can have a negative impact on the workplace, and it can also go public resulting in unwanted and harmful publicity.
This is why it is best to plan ahead by implementing detailed policies and procedures designed to avoid discrimination claims whenever possible.
Once a claim has been made, however, or when you know that one is coming, it is critical that the business promptly begin a thorough investigation to prepare for the company’s response to the EEOC charge.
The company should immediately:
- Document everything,
- Review all relevant documents that the EEOC may request including the employee’s personnel file, any witness statements, performance reviews, payroll records, employment agreements, employee handbook, and any relevant policies and procedures,
- Get statements from all witnesses to the alleged events,
- Consult with corporate counsel, and
- Have any potential witnesses meet with corporate counsel to ensure they are prepared for EEOC interviews.
How to Respond to an EEOC Charge: Effective Position Statements
In most cases, the EEOC will request that the company submit a “position statement” with supporting documentation.
This is a critical stage of your response to the EEOC charge – if your position statement is well drafted, focused solely on the facts, provides a clear explanation of why the discrimination claim is unfounded, and is supported by documentary evidence, the EEOC may dismiss the claim.
If your position statement is not filed within the deadline, does not adequately address the allegations, or does not provide documentary evidence to support the company’s defense, it could result in an adverse finding or even a lawsuit against your company.
The EEOC provides guidelines for drafting an effective position statement on its website and recommends that employers:
- Address each alleged discriminatory act and your position regarding it and provide copies of documents supporting your position and/or version of the events.
- Provide a description of the organization; include the organization’s legal name and address, the name, address, title, telephone number and email address of the person responsible for responding to the charge, the primary nature of the business, and the number of employees. A staffing or organizational chart is also useful in helping to focus the investigation.
- Provide any applicable practices, policies or procedures applicable to the allegations in the charge.
- Identify any individuals other than the Charging Party who have been similarly affected by these practices, policies or procedures; describe the circumstances in which the practices, policies, or procedures have been applied.
- Explain why individuals who were in a similar situation to the Charging Party were not similarly affected.
- Identify official(s) who made decisions or took action relating to the matter(s) raised in the charge.
- Be specific about date(s), action(s) and location(s) applicable to this case.
- Provide internal investigations of the alleged incidents or grievance hearing reports.
- Inform EEOC if the matter has been resolved or can be resolved; if it can be resolved, please indicate your proposal for resolution.
EEOC Mediation and Settlement
A company can settle an EEOC charge during this process or even before the individual files a claim with the EEOC.
If the claim has not been resolved, the EEOC has its own mediation and settlement process – it is free, it is confidential, it can save your company time and money, and it may allow your company to avoid a lawsuit and the expense of litigation.
Please feel free to contact one of our Murray Lobb attorneys to obtain our advice regarding employment law matters including defense against claims of employment discrimination and representation for investigations and proceedings before the Texas Workforce Commission, EEOC, and Department of Labor.
We also remain available to help you with all your general corporate, construction law, business, and estate planning needs.