I wrote about this last year, because in 2010, the Equal Employment Opportunity Commission received nearly 100,000 new charges of workplace discrimination, the highest figure ever. In the Baltimore Region, there were approximately 3,300 pending charges and about 13 investigators to handle them. Well, 2011 was another banner year for charges being filed, and particularly in the Baltimore area. The back log still exists and there is no quick fix to solve it. So, what’s an employer (or employer representative) to do? Here are some things to consider.
The EEOC gets a bad rap from both plaintiff and defense lawyers, usually because it takes so long to get a decision. Even mediation can take months to schedule. Faced with a charge, some employers think they can simply refuse to cooperate. That is a bad idea; when the EEOC gets mad, it has the tools at its disposal to get its way nearly all the time. I don’t have a magic wand that will provide a better experience at the EEOC, but I can provide some guidance on how to approach handling an EEOC charge to avoid getting on the EEOC’s bad side.
- Getting Notice of the Charge. With an increased workload, the EEOC has taken to giving employers “notice” of a charge being filed, without any actual allegations. This is because, by law, the EEOC needs to give an employer notice of a charge within 10 days of receipt of information constituting allegations of discrimination. In Federal Express v. Holowecki, 552 U.S. 389 (2008) the Supreme Court, largely deferring to the EEOC, said all that is needed to have a “charge” is enough substance so that it be “reasonably construed” as a request for EEOC to take action to protect the employee’s rights. A letter from an employee still needs to be converted into the formal Charge of Discrimination (EEOC Form 5). The EEOC will not send allegations in that form until they have been drafted by an investigator and signed by the charging party, something that can take months. The take away: When you get “notice” of a charge, collect all available information. Make sure nothing is purged. Unless your witnesses are expected to be unavailable in a few months, however, it probably is not necessary to try and draft a response to the charge, particularly because you do not have the allegations anyway.
- Consider mediation. When you get the Charge of Discrimination with the allegations, the EEOC will always include a request to mediate. Scheduling mediation will postpone the filing of a response (if the matter is not resolved), and eliminate the need for one if the mediation is successful. It may be a few months before the mediation occurs. You will need to have the investigation into the allegations completed, so you can tell the story accurately at the mediation.The take away: If you want to resolve the matter and are willing to give up something, mediation is worth considering. Do not, however, go into mediation thinking you will get the charging party to recognize the error of her ways and go home with nothing.
- Responding to the Allegations. If mediation is not an option, let the EEOC know when you will respond. It is more important to provide a well-written response than to meet an arbitrary time line. The key to a good response is to tell the story clearly, concisely, and accurately. Include supporting documentation. Sometimes the EEOC sends out “requests for information” seeking lots of information, but that does not mean you need to respond to each request. EEOC investigators will most likely share your response with the employee (and the employee’s lawyer), so keep that in mind if you are comparing the employee’s circumstances with those of co-workers. Be sure to redact personal information like social security numbers.The take away: This may seem self serving, but responding effectively to the EEOC at this stage involves knowledge of the “rules of the game.” Let knowledgeable counsel do the job for you. It is better to get the facts straight and the story well told out of the gate. If you try to tell a different story later, you can bet that a claim of “pretext” will rear its ugly head, which never ends well for the employer.
- Interacting with the EEOC. Be nice, be civil. Realize that 99% of the time you are dealing with a truly over-worked government employee who is just trying to do his or her job, and is looking at a stack of over 200 charges to investigate.The take away: My mother always told me “you can catch more flies with honey than with vinegar.” B. Franklin “’Poor Richard’s Almanac” (1744).
- When the EEOC gets angry. You will not like it. Although it does not happen very often, if the EEOC senses that an employer is not providing the information that it needs to conduct its investigation, it can bring to bear the full force and effect of the Federal Government. Title VII, the ADEA, and the ADA all grant the EEOC broad subpoena power to elicit information relevant to discrimination charges, which the EEOC may enforce in federal court. Federal courts most often will side with the EEOC if it gets to that point.The EEOC’s subpoena authority does have its limits. For a court to enforce an administrative subpoena, the EEOC must show that “(1) it is authorized to make such investigation; (2) it has complied with statutory requirements of due process; and (3) the materials requested are relevant.” EEOC v. City of Norfolk Police Dep’t, 45 F.3d 80, 82 (4th Cir. 1995). Thus, in EEOC v. UPMC, 2011 U.S. Dist. LEXIS 55311 (May 24, 2011), the court refused to enforce a subpoena in an ADA case where the EEOC sought corporate-wide information unrelated to the underlying individual charge of discrimination, finding that the subpoena “constitutes a ‘fishing expedition’ to discover the existence of other potential claimants rather than a reasonable effort to develop information that is relevant to [the] . . . charge.”
The take away: Avoid facing an EEOC subpoena; respond to inquiries from the EEOC with an eye toward compliance. If you believe that the EEOC is over-reaching, and it sometimes does, be sure to consult counsel familiar with the process to make the experience as (relatively) painless as possible.