You hesitate as you open a letter from the EEOC. As you feared, it contains a Charge of Discrimination filed by one of your biggest headache employees, the one who is always complaining about everything. Don’t they know that he’s a serial complainer? Do you really have to respond to the Charge?
Yes. Yes you do.
Relax and take a deep breath. You can do this.
- Evaluating the Claim
Read the Charge. Read it again. Typically, it will be short on details and long on hyperbole. Determine what claims the employee is making and evaluate what types of evidence she must show to prove her claim. Talk to legal counsel to make sure you understand the nature of the claims.
- Best Practices for Investigating the Claim
If you do not have in house legal counsel, consider hiring counsel to assist you in evaluating and investigating the Charge. You know the facts. Legal counsel can help you objectively evaluate your exposure and help you present your case in the best manner possible.
Consider hiring an outside investigator to interview relevant witnesses and advise management on the strength of the claims. That investigator should be someone other than the attorney preparing your position statement. The investigator should gather the facts; your counsel can advise management on the legal impact of those facts and give guidance on how to respond to the charge of discrimination.
Don’t retaliate against the Charging Party or against any witness who offers support to the employee’s claims. Retaliation is any adverse employment action. The hard part about retaliation is that it is absolutely contrary to human nature. You are legally prohibited from treating a “complainer” differently because of her complaint. A lousy discrimination claim can quickly become a great retaliation claim. Don’t retaliate.
- Document and Computer Evidence Retention
We could spend an entire day talking about preservation of electronic evidence. In short, the company should take immediate steps to make sure that electronic evidence is not inadvertently deleted. Early on, the company should send out a preservation letter to all relevant employees (e.g., the employee’s co-workers, managers, and IT staff) to help preserve the information. The attached memo provides a sample that the company may wish to use. That memo should come from or at the direction of legal counsel to help preserve the confidentiality of that attorney-client communication.
- Position Statements as Potential Evidence in Litigation
Your position statement is critically important in framing the issues in the investigation. A well-crafted statement can focus the investigation on the matters that are properly at issue. Particularly when you have a strong defense to the charge, provide the agency with all information necessary to show that the charge should be dismissed.
If, on the other hand, your investigation reveals that the claim has some merit, consider availing yourself of the mediation services offered by the EEOC. Your defense will not get better with time. Devote your time and resources toward resolving the claim rather than defending the claim.
Consider hiring outside counsel to prepare your position statement. Outside counsel see (and respond to) many charges of discrimination on behalf of their clients. They have a good feeling for the current “hot” issues at the EEOC and understand how to present your case in the best way possible.
The following are critical components to a successful position statement:
- Start Early. Don’t wait until the last minute to start your investigation or to begin drafting your response. Give yourself time to review, edit, and polish your response.
- Honesty and Candor. Your mother taught you to be honest. Listen to Mom.
Do not conceal witnesses or evidence, falsify documents, threaten potential witnesses, lie, or do anything else that would displease Mom. Nothing good ever comes from hiding facts or shading information. If you have bad facts, admit them and focus on resolving the dispute.
- Proper Tone. Be respectful and courteous. Refrain from name calling. Don’t be overly critical of the employee or his conduct. State the facts and let the investigator draw her own conclusions.
- Company Overview. You know about the nature of your business and your commitment to providing a good working environment. The EEOC does not. Provide a good overview about your business, including the company’s legal name. Give a general overview of the company’s business model. That overview often helps explain why certain policies are important to your business operations. Lend a “human” face to your company. Help the investigator understand who you are; give her perspective to your position of the case.
- Employee’s Responsibilities. As part of giving context to the matter, carefully explain the employee’s responsibilities and the legitimate job functions that are associated with those responsibilities. Explain the employee’s role in the company, emphasizing why it is imperative that the employee fulfill her responsibilities. Help the investigator understand why the employee’s actions are not acceptable for the position. If appropriate, include an organizational chart or “cast of characters” to help clarify the relevant players in your case.
- Policies and Handbooks. Identify your commitment to EEO policies. Outline the relevant policies, procedures, and handbooks that impact this particular situation. Include copies of the relevant policies, and show how the employee complied or failed to comply with those policies.
- Tell Your Story. Do more than simply refute the employee’s claims. Tell your own story through your point of view. Address every allegation of discrimination. Explain why the employee was performing inadequately. Present supporting documentation (i.e., write ups, emails, reports, evaluations, etc.). Explain any ways in which the employee violated your policies and procedures. Thoroughly and clearly explain why the company’s actions were appropriate. Identify by name and title the persons who made the relevant employment decisions, and give a clear understanding of why that decision was made.
Identify the facts and circumstances that give rise to the claimed discriminatory conduct. Show why the company made its employment decision. If possible, provide evidence showing that the employee’s claim lacks merit. For example, you can challenge a claim of age discrimination by showing that other employees in the same age classification worked successfully with the same supervisor who the employee claims discriminated against him based on his age.
Explain what you learned in your investigation of the employee’s charges of discrimination. Consider whether you want to include declarations from witnesses with knowledge about the underlying facts.
Focus on the details. Be specific. Give examples. General denials are generally unpersuasive. Using specific date, times, and locations give credibility to your story.
- When appropriate, show how the company has treated other persons similarly situated to the employee. If they were treated differently, explain why the different treatment was appropriate.
- Review by Decision Makers. Have the decision makers review the draft to ensure that it is accurate in all respects. Ask counsel to review your draft, even if you have decided not to engage counsel to draft your position statement. Remember that your position statement becomes a public record. The EEOC will give a copy to the Charging Party. Your statement may be used in litigation. Make sure it is accurate in all respects.
- Resolution. The employee may be complaining about a problem that already has been resolved or which, with reasonable effort, may be resolved. If you have a solution for resolving the problem, explain that solution.
- Confidentiality. You may need to provide confidential or sensitive information as part of your response, including such things as medical information, social security numbers, trade secrets, proprietary information, and personally identifiable information. Segregate that information from the balance of your response and mark it as confidential.