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Discrimination Deluge

EEOC claims are on the rise. Discover what you need to know to help your company rise above them.

Wednesday, August 1, 2012
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Last year was a record-breaker for the U.S. Equal Employment Opportunity Commission. But not the kind that culminates with high fives and chilled champagne. Are you sitting down? The EEOC had 99,947 discrimination charges filed nationwide in 2011 -- the highest ever. Here's the breakdown:

Race filings, 38 percent. Gender, 28.5. Disability, 26 (its most to date, in large part due to the Americans with Disabilities Act Amendments Act of 2008). National origin, 12. And a staggering 37 percent of the aforementioned filings included retaliation claims (also the largest ever.)

The statistics are sobering enough, but it is the trends that paint an even more alarming picture for employers. While race and gender charges have remained at basically the same levels over the last 10 years, there's been a spike in the number of disability, age, religion and national origin cases -- with the biggest increase seen in retaliation claims. The job market may be tough, but it seems corporate culture is becoming just as formidable.

Now, the good news. As challenging as the times and labor relations may be, there are effective ways to overcome an EEOC charge levied against your organization.

Here then, are strategies and solutions for responding promptly, thoroughly and effectively to such a claim, regardless of the allegation.

Summon Your Inner Sherlock

Before you can respond to the EEOC, you need to figure out exactly what events transpired. This means conducting a thorough internal investigation. Whether you use legal counsel or not, the investigation should include extensive interviews with all relevant witnesses, including: managers, supervisors, decision-makers, co-workers and anyone in your HR department with knowledge of the situation.

During the inquiry, you'll also want to examine all pertinent documents. Not just the personnel file of the charging party (the person making the complaint), but also the files of others involved. Be sure to go over the applicable personnel policies and procedures and gather all signed acknowledgment forms since this builds credibility for your defense. Finally, collect and review any grievance files, internal complaints and other related materials involving the charging party.

A Winning Position Statement

Preparing a well-drafted position statement that is clear, concise and complete should be your primary goal since it will be shared by all parties -- such as upper management within your organization, the charging party, attorneys and EEOC representatives -- and, if the investigation leads to litigation, could be used as evidence. Crafting a winning positioning statement consists of four key facets: a strong introductory denial statement, a chronological factual background, legal arguments and defenses, and a request that the charge be dismissed.

Strong denial statement. Start with a strong introductory paragraph that denies any discrimination or retaliation and provides a brief summary of the company's position. For example: "This letter responds to the charge of discrimination filed on (date) by (name of charging party) in which the charging party alleges he/she was discharged because of (sex, race, age, religion, etc.). The company strongly denies the charge and maintains that there is no evidence to support the allegations. As explained in further detail below, the charging party was discharged because of (stealing, excessive tardiness, poor performance, etc.), and not because of his/her (sex, race, age, religion, etc.)."

Here's an example of what you don't want to say, as taken from an actual position statement submitted to the EEOC: "The company did not discriminate against the charging party. It was his co-workers."

While this may seem like a simplistic and comical example of what not to say, these are exactly the types of admissions that raise immediate red flags for an EEOC investigator.

Factual background. Since the EEOC investigator probably knows little or nothing about your products and/or services, some background information will provide helpful context and build your case for the action that was taken. For example, if the company offers a courier service where delivery is expected at certain times and a driver was fired for excessive tardiness, the background information will help the investigator understand why excessive tardiness could not be tolerated by the company.

Put together a comprehensive summary of your company's EEO policies that are distributed to employees. This demonstrates your commitment to a workplace free of harassment and discrimination. We definitely recommend providing a copy of the policy acknowledgement form signed by the charging party.

Explain the charging party's employment history in chronological order, including all facts that are related to your defense of the charge. Describe the reasons for the company's actions by addressing each allegation and leaving no questions unanswered. An unanswered question or issue leaves the door wide open for the EEOC investigator to request more information than the company may wish to provide.

Legal arguments and defenses. Provide evidence of consistent past decisions that demonstrates non-discrimination. To disprove a charge of discrimination, explain why employees with similar situations or protected characteristics were or were not treated the same way as the charging party. Here, it is also helpful to include demographics of the company's workforce.

As you coordinate a response, remember that EEOC investigators are generally not attorneys. While they will pay some attention to legal citations that you or your attorney include in the position statement, it is likely they will be more receptive to references to the EEOC Compliance Manual as additional guidance.

Request that the charge be dismissed. Wrap up your position statement with a firmly stated conclusion that the charging party's claim is not valid and that the company acted fairly. Remember to request that the charge be dismissed.

There you have it -- the four pillars of a winning position statement. When you've finished writing it, make sure to carefully scrutinize what you have compiled for accuracy and completeness (and to ensure that you used respectful language when referring to the charging party). Lastly, before sending it to the EEOC, have key managers involved with the events review the position statement to ensure it is persuasive, comprehensive and (above all) accurate.

The Seven R's of Success

Beyond the four pillars of the winning position statement, we recommend following these seven guideposts during your involvement with the EEOC:

Respond to the charge with confidence and courtesy. It's no walk in the park to have a charge filed against your company, but embrace the opportunity to explain your side of the story. While a charge does not mean that the EEOC has determined your company or an employee engaged in discrimination, it does mean there is some basis for an investigator to look into it.

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Be firm on important points, but remember to always be considerate. Good relationships with the investigators and agency personnel can be crucial to the final determination or outcome. And remember, if EEOC officials ask for information and you don't give it to them, they can (and likely will) subpoena it.

Review all EEOC paperwork carefully. Make sure you understand what is asked of you and only submit what is required. You will likely be asked to respond to a request for information that could require you to supply copies of personnel policies or files and other relevant information. If you think the RFI is too broad, talk to the investigator about narrowing the scope of the request. He or she will appreciate that you are willing to talk about the request rather than refusing to provide a reasonable amount of information or otherwise disregarding the request.

Request to preserve all relevant documents. Issue a litigation-hold notice to all of the relevant staff as soon as you receive the charge. This may require contacting your IT director to avoid routine purging of emails, voicemails and Internet-usage records.

Remind supervisors about avoiding retaliation. If the charging party is still employed, ensure that no retaliatory action is taken. Remind managers, supervisors and anyone else involved with the allegation about the company's anti-retaliation policy.

Restrict access to maintain confidentiality. Sharing information about the charge should be on a strictly need-to-know basis. Instruct key personnel that they should only discuss the matter with you or the person coordinating the response.

Recognize that you might need help. Consider whether to respond to the charge yourself or if you should consult with an attorney who specializes in employment law. Once you designate the company's point of contact, share the information with the EEOC.

React proactively by notifying your insurer. Policies often require prompt notice of claims and charges involving discrimination are usually included in that category. Failing to inform your insurer could lead to a denial of coverage.

Merits of Mediation

At the start of an investigation, the EEOC investigator will let you know whether the charge is eligible for in-house mediation, at no charge to either party. Mediation is an informal resolution process and is usually completed in one session that generally lasts one to five hours. It is entirely voluntary and both parties must agree to participate. Early mediation can provide a faster and cheaper resolution by avoiding a lengthy investigation and possible costly litigation.

Another advantage of mediation is that you can retain some control over the outcome, including obtaining a global release of all potential claims against your company. If mediation leads to an agreement, the EEOC will close the file.

So that's the quick lowdown on how to respond to an EEOC charge. Our hope is that your company will never receive a charge. But as claims continue to grow across the country, so do your chances.

If, indeed, an EEOC investigator contacts you for information, make every effort to respond quickly, accurately and thoroughly. Being helpful and professional from the start can make all the difference in the final outcome and will guarantee you a higher chance of having the EEOC say your favorite phrase: "Charge dismissed."

Melanie Pate is a partner at Lewis and Roca in Phoenix and works with HR leaders and in-house counsel to resolve complex employment issues. She can be reached at mpate@LRLaw.com.

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