October 24, 2018
It’s an employer’s nightmare: You are notified by the Equal Employment Opportunity Commission (EEOC) that a complaint has been lodged against the company.
Many employers are facing this situation, according to EEOC statistics. The number of individuals filing discrimination, harassment and retaliation claims with the federal government has remained high in recent years (see right-hand box for the statistics)
What should you do if your company receives an EEOC notice? Remain calm. It does not mean the federal government is filing a lawsuit. Rather, an individual has accused your company of violating the law and the EEOC is investigating whether there is reasonable cause to believe the charges. If you respond to the charges honestly and expeditiously, you could avoid a costly discrimination lawsuit down the road. At the worst, you will be able to lay the groundwork for a solid defense.
Frequently, the EEOC notification will contain just a few short paragraphs relating to the alleged incident. Don’t be misled by the brevity of the initial statement. Spend time with your attorney developing a comprehensive response to the complaint. Don’t reply, don’t do anything related to the subject of the letter and don’t communicate with the employee or employees involved in the letter without first consulting with your attorney. Here are seven steps that can help improve the likelihood of success.
- Provide all the facts you have at your disposal. In responding, be as detailed as possible in presenting the circumstances surrounding the allegation. However, don’t go into rambling explanations.
Also, explain the reasons why the company acted in the manner in which it did. The best way to thwart subsequent legislation is to convince the EEOC investigators that there were valid and justifiable business reasons for your actions.
- Establish the setting. It is important to share details about your business that are not commonly known. For example, it may be critical for your operation to have a customer service desk fully staffed at all times. If you fire or discipline a customer service worker who is habitually tardy or regularly fails to show up without a good excuse, demonstrate how this affects your business. Don’t make assumptions that everyone knows the exact nature of your business.
- Document your position. When possible, support your version of the events through written records. Begin with sections of the company manual that could have a bearing on the allegations. Use documentation such as sales reports, attendance records and personnel files to prove your point. Print out relevant e-mail messages that indicate that your concerns or actions were justified. Make sure that all relevant records are preserved — especially those that are stored electronically. Ensure that the accuracy of statements are verified by other employees who do not have a vested interest in the outcome.
- Rely on precedents. You may be able to convince the EEOC that you did not illegally discriminate against an employee if you can show that you consistently used the same approach in a nondiscriminatory manner. For instance, if you terminate a female employee for certain acts of misconduct and the employee claims sexual discrimination, document other instances where male employees lost their jobs for exhibiting the same or similar behavior.
- Use common sense. Information pertaining to the complaint should strictly be handled on a “need-to-know basis,” especially if the employee involved in the charge still works for the company. Be polite and cooperative when questioned by the EEOC investigators and instruct other staff members to do the same.
- Check your company’s insurance policies. Many liability policies cover claims relating to an employer’s discriminatory practices. Generally, such a policy requires you to contact the insurer right away when a claim arises. If you don’t act swiftly, your coverage for the claim may be denied — including all legal damages relating to the initial claim.
- Seek expert legal guidance. The EEOC notification may be the first step in a long string of legal proceedings your company will face. Therefore, you should protect your company’s best interests from the outset and obtain legal assistance in preparing your company’s response. Your attorney can interview witnesses and investigate mediation. Ask your attorney how to proceed if federal investigators come to your workplace asking to speak with staff members. Finally, coordinate efforts with your legal and human resources advisors to put on the best defense you can.