“No matter what the allegation is, every company (entity) should respond promptly, thoroughly and effectively to an EEOC charge”. (1) According to the EEOC, “when a charge is filed against you, you will be notified within 10 days that a charge of discrimination has been filed and you will be provided with the name and contact information for the investigator assigned to your case.” (2)
Once you are provided with contact information for your investigator, contact them to gather as much information as possible about the charge or allegation. At the same time, contact your entity’s insurance company with all available information. With prompt notification, your entity’s insurance company can assist with preparing your response or correction. In preparing a response, your entity should gather and preserve all relevant documentation. As you gather documentation and notify your insurance company, make sure that all information about the charge or allegation is kept confidential. A preexisting policy or procedure should be in place at your entity that states who should be notified about such charges or allegations.
One of the most common types of charges or allegations the EEOC investigates is retaliation. Make sure that everyone notified of the charge or allegation also understands not to take any steps or perceived steps against the person(s) making the charge or allegation. Your entity should also already have an anti-retaliation policy in place that all employees know and understand.
Before your entity responds to the charge or allegation or thinks about mediation and/or settlement, the entity should have an internal investigation completed. An internal investigation includes reviewing all relevant information and documentation. Complete interviews with all employees connected to the charge or allegation are necessary. Keep in mind, as you interview employees, they must be comfortable and understand that you are looking for information, not blame or retaliation.
Following the internal investigation, an EEOC investigator will inform you of what the next steps are. This includes informing your entity of their responsibilities and options. Options may include mediation and voluntary resolutions. After the internal investigation and consultation with your insurance company, you will have a better understanding of your entity’s viable options.
If the EEOC believes an investigation is required, the entity will be asked to:
• Submit a statement of position. This is your opportunity to tell your side of the story and you should take advantage of it.
• Respond to a Request for Information (RFI). The RFI may ask you to submit copies of personnel policies, Charging Party's personnel files, the personnel files of other individuals and other relevant information.
• Permit an on-site visit. While you may view such a visit as being disruptive to your operations, our experience has been that such visits greatly expedite the fact- finding process and may help achieve quicker resolutions. In some cases, an on- site visit may be an alternative to a RFI if requested documents are made available for viewing or photocopying.
• Provide contact information for or have employees available for witness interviews. You may be present during interviews with management personnel, but an investigator is allowed to conduct interviews of non-management level employees without your presence or permission.(2)
If your entity has sufficient policies and procedures in place, meaning the policies and procedures are current, advertised to all employees and followed consistently by all employees, the EEOC will often dismiss the charge or allegation relatively quickly.
After the EEOC investigation is complete, if the Commission thinks there is reasonable cause to believe discrimination has occurred, the two parties involved will be asked to meet and have “conciliation” (2) to resolve the charge to both parties’ satisfaction. If conciliation fails, the next step is for either the EEOC or the employee(s) making the charge to go to court.
If you have any questions relative to the EEOC and discrimination, please see the references below or contact your FLC Risk Control Consultant. If you are an FMIT member, you can also access the EPL Helpline at www.eplassist.com
or toll free 1-(888) 244-3844.
(1) Effective Responses to EEOC Charges, by Melanie Pate and Mary Ellen Simonson, HR Magazine
(2) The Charge Handling Process, U.S. Equal Employment Opportunity Commission, EEOC Website