When you engage in an activity on a fairly frequent basis, it?s easy to forget how that activity might seem very strange or foreign to others — especially to those who don?t often encounter the world in which you live.? As for me, a very significant part of my practice includes conducting internal (EEO and other) investigations. ?As a seasoned employment lawyer with more than 20 years of experience, I hate to admit that the world of regulatory dictates and related punishments can sometimes seem ?normal.?? But when I recently received a call from a prospective client who was referred to me by another client, it occurred to me that my world is not all that transparent and can fairly be characterized as a strange and sometimes non-sensical place.
That prospective client is a small business that had just received notification from the EEOC Denver Field Office of a Charge of Discrimination filed by a former employee. Early in the conversation with this prospective client, it became evident that although this business had been in existence for nearly 40 years, it had never received such a Notice.? As a result, these savvy and experienced business owners were overtly perplexed as to why the Charge was received, how they were supposed to respond, and what the Notice meant to them, as individuals, and as a business, on a longer-term basis.
While I want to believe, and do believe, that this client?s initial concerns and confusion have been appropriate addressed (at least for now) the initial intake call with them forced me to reflect on the degree to which our business clients ? many of whom are small to medium sized businesses ? might be equally as perplexed by receipt of such a Notice. ?This thought was the genesis for drafting this blawg ? an earnest attempt to de-mystify the EEOC investigative and ?Charge Handling Process.?
First, everyone should be aware that the EEOC provides some insight and assistance on its website where it includes a?description of the charge handling process. ?Though I encourage all readers to visit the web site, I?ll offer my own admittedly more simplistic attempt at explaining the Charge Handling Process as follows:
?Step 1 ? Filing (Receipt) of the Charge
The filing of a Charge triggers the investigatory process ? a process that is not always as linear as one might think it should be.
Step 2 ? Assess Jurisdiction
Upon receipt of the Charge, it is a good idea to first assess whether the EEOC has ?jurisdiction? or authority over the claim.? This is important because if the EEOC does not have jurisdiction then the investigation should not go forward.
Step 3 ? Charge Prioritization Categories
Assuming that the EEOC has jurisdiction over the claim, it is important to understand that at some point, the EEOC will likely classify (prioritize) the charge as either a category ?A?, ?B?, or ?C? claim.? The significance of these categories cannot be understated as a category ?A? generally means that strong documentation or witness support is offered or that the policies in question appear on their face to be discriminatory or per se violations.? Category ?B? claims have less support than Category ?A? and generally signal that additional investigation is necessary to make a determination.? Finally, claims categorized as ?C? generally fail to state a claim, are untimely, or reflect the conclusion that the charging party lacks credibility.
Step 4 – Mediation Option
Most employers will be given an opportunity to participate in mediation.? Mediation in this context is much like any other mediation that a party might encounter and participation is volitional.? We encourage clients to seek advice and counsel of a qualified practitioner before submitting to the Mediation process.
Step 5 ? Position Statements
Employers are generally given the opportunity to submit a Position Statement detailing its response to the allegations asserted by the charging party. ?Employers may also, at this time, be asked to respond to a Request for Information that is generally designed to further aide the EEOC in evaluating the merits of the charge. ?Well-drafted Position Statements are crucial and employers are wise to secure the advice, counsel, and support of legal counsel in preparing a detailed response that includes background information about your company, the facts about what occurred (or did not occur), and a legal analysis in support of your position opposing the Charge.
Notably, at this stage, or concomitant with it, the EEOC often requests additional documentation and information, and if an employer objects to the production of certain documents or information, employers need to appreciate that the EEOC can always obtain the information through an administrative subpoena.
Step 6 ? Notice of Right to Sue
Following review of the information requested and/or the Position Statements of the parties, a ?Notice of Right to Sue? may be issued.? The Notice of Right to Sue is issued to the Charging Party and effectively informs the Charging Party that s/he is free to pursue his/her claims against the employer on the Charging Party?s own time and money.? That is, the EEOC will not investigate the Charge further on the Charging Party?s behalf.
Step 7 ? Administrative Action
To the extent that a Charging Party is not issued a Notice of Right to Sue and the investigation evolves, the EEOC will likely conduct ?interviews? of witnesses and related discovery that includes the possibility of issuing subpoenas for production of documents and information.? Eventually, the Charge is resolved through administrative action, settlement, conciliation, or the EEOC?s issuance of a ?Right to Sue? at this later stage in the process.
Step 8 ? Lawsuit
At the end of the process, the parties retain their right to recourse through judicial review and the legal process.
There are strict deadlines associated with the investigative process and employers are wise to appreciate that any submissions provided to the EEOC become a ?record? and if not properly drafted can be difficult (if not impossible) to overcome.? Having clearly written policies and well defined processes can go a long way toward mitigating future risk.