By S. Eric Bass
The United States Equal Employment Opportunity Commission (“EEOC”) dealt with almost 74,000 new claims of discrimination by employees in 2022, and the number of claims is expected to rise. In this blog, we provide guidance on how to respond in the event that your company faces a claim of discrimination.
Notice of Charge
You received an e-mail from the local District office of the EEOC with a Notice of a Charge of Discrimination against your company by an existing or former employee. This charge is mostly likely for a claim of discrimination and/or retaliation against the employee for discrimination based on race, gender, religion, age, disability, or another protected class. The e-mail instructs you to log in to an EEOC website and respond to the charge immediately. If you have never dealt with the EEOC, this can be an intimidating process for an employer. To help make this process less scary, below is some general information on how the process works and our recommendations on the initial steps to help you navigate the EEOC process more successfully.
Navigating the EEOC Website
The first step is to follow the prompts in the EEOC e-mail to log in to the website. You will be asked to confirm information about your company and the people responding on behalf of the company. The site will also ask you to create a new password for your next login. If you have an attorney working with you on the response, you can permit your attorney to log in and input the information for you, noting the attorney as the primary company contact. The site used by the EEOC will be the primary source of communication about the investigation and process of the EEOC Charge moving forward.
Tip: Become familiar with the site regardless of whether you use an attorney for responses.
The site will also provide you with a copy of the Charge noting the employee’s name, the claims they make, and your timeline for responding to the Charge or any initial requests for information by the EEOC.
Gathering Evidence
The most time-consuming step is gathering information and documentation to respond to the Charge. Even if you have the help of an attorney, your staff and you will have to provide your “side of the story” relating to the charge. The more documentation you can provide to support your “side,” the better your defense can be. This documentation often includes performance reviews, written warnings, other performance documentation, e-mails and text messages (including e-mails from management about performance issues that do not necessarily go to the employee), pay stubs, and the employee’s personnel file.
Once you have gathered existing documentation, you will likely have to interview managers and employees who interacted with the person making the Charge. If you have human resources personnel or an attorney working on the charge, we recommend that you involve them in all interviews and gathering of evidence. It’s essential to have an experienced third-party conduct interviews to obtain more honest and relevant responses. It can often be difficult for employees to be candid with the “boss” when conducting the interviews.
Depending on your company’s size, you may discover that someone in management or on staff may have acted inappropriately. If, in gathering this information, you find that company staff may have acted inappropriately or that you do not have good documentation to refute the claims in the Charge, it may be time to consider mediation.
To Mediate or Not
The EEOC offers the opportunity to attend a mediation with the employee as a possible first step. If the employee and you agree to a mediation, a time and place will be arranged to meet with the mediator. At this mediation, each party will present its “side” to the mediator. The mediator will then seek a resolution that all parties will agree to support. In most cases, this ultimately means some compensation is paid to the employee who made the charge. While you may not like making a payment to the employee, this fortunately will end the process of the Charge if the parties agree to a resolution.
In my experience, agreeing to mediation is a good first step if an employer has little support to defend the claim or discovers that someone at the company may have acted inappropriately. At a minimum, you will discover the employee’s monetary expectations or demands and any additional evidence they may have to support their claim. You can also determine your opinion of the strengths of their claim and the merits of their demands with the mediator’s help. If you have major concerns about your defense, the mediation process can help resolve the charge without further investigation from the EEOC.
However, if, after your initial investigation, you believe the Charge has no merit, we do not typically recommend mediation. Mediation takes time and effort to conduct. Furthermore, the most common result is a payment to the employee. If you believe the claim lacks merit and you can support your “side” well, mediation is likely not your best option.
In any case, it is vital to engage an attorney to assist in deciding whether to mediate and to help you through the process. Someone experienced in dealing with this process can help you avoid making major mistakes and decide on a reasonable proposal of resolution from the other side or the mediator. Going into this process without experienced help is not advised.
Your Statement of Position
If your mediation does not resolve the Charge or you choose not to mediate, the next step is to prepare and submit a “Statement of Position” to the EEOC. This Statement of Position outlines your “side” and provides your defenses to the Charges made by the employee. It must be filed within 30 days of receipt of the Charge (however, mediation can delay this requirement).
It is vital to provide all the most substantial evidence you have in an easily understood and convincing manner to the EEOC. If you have never been through this process, we recommend you obtain assistance from someone experienced in dealing with EEOC Charges to help you prepare this Statement of Position. If your Statement of Position is well prepared and presented, it can convince the EEOC to end its investigation and resolve the Charge favorably for you. Otherwise, the EEOC will likely choose to investigate the claim thoroughly, which can lead to disruptions at work and heavy liability for your company.
Often, the EEOC will request you to provide documentation with your Statement of Position. If certain documents are requested, please be sure to provide them. The Statement of Position and any supporting or other requested documents will be posted on the EEOC website. Then, you wait for the EEOC’s response, which typically includes more requests for information, a full investigation, or a closing of the charge.
Hopefully, you have responded well, and the EEOC closes the charge. However, if the EEOC decides to investigate the charge at this point, the process becomes more complicated and will be addressed in a separate blog post.
The attorneys at Venn Law Group have experience helping businesses deal with employee misconduct investigations and EEOC complaints. To learn more about how Venn Law Group can help you respond to employee misconduct or EEOC complaints, please contact us here.
Eric Bass is an attorney at Venn Law Group who holds both a JD and MBA, providing him with a wealth of knowledge and insight regarding the challenges business owners face. He has more than 18 years of experience in mergers and acquisitions, succession and exit planning, business partner agreements and issues, business formation, franchising, contract negotiations, strategic planning, and employment issues. His peers selected Eric for inclusion in The Best Lawyers in America® in Employment Law – Management (2019 – 2021), and he was recognized by Business North Carolina Legal Elite for Employment Law (2021-22), Business (2023); Employment (2024)
Eric Bass is an attorney at Venn Law Group who holds both a JD and MBA, providing him with a wealth of knowledge and insight regarding the challenges business owners face. He has more than 18 years of experience in mergers and acquisitions, succession and exit planning, business partner agreements and issues, business formation, franchising, contract negotiations, strategic planning, and employment issues. His peers selected Eric for inclusion in The Best Lawyers in America® in Employment Law – Management (2019 – 2021), and he was recognized by Business North Carolina Legal Elite for Employment Law (2021-22), Business (2023); Employment (2024)