The EEOC and state and local agencies have been filing more administrative charges in recent years and that trend is likely to continue.
Because administrative charges can be precursors to discrimination lawsuits, it’s critical for you to handle them properly. These 10 tips will help you prepare to respond:
1. Tell the whole story
Often, an EEOC charge contains just one or two paragraphs, containing little more than conclusory allegations of discrimination. Resist the temptation to put minimal effort into your response.
It’s usually advisable to provide a comprehensive response, detailing the circumstances surrounding the employment relationship and the reasons for adverse employment actions. Try to nip the claim in the bud by giving the agency all the facts. Demonstrate that there were legitimate business reasons for your actions.
2. Use documentation
If you have documents supporting your version of events, consider including them in your response. Documentation dating from the time of the adverse employment action can be the best way of discrediting the allegations. Attendance records, sales reports and e-mail messages can all help prove that events happened as you say they did, and that the company’s concerns were bona fide.
3. Verify the response’s accuracy
Attorneys love catching an employer in a lie. Since the information you submit could be used in later legal proceedings, make sure everyone involved reviews the response and verifies the accuracy of every statement.
4. Highlight consistent past decisions
One of the best ways to demonstrate that a decision was not motivated by unlawful discrimination is to point to the same actions being taken against similarly situated employees who are not members of the charging party’s protected class.
For example, if the charging party alleges that her termination was motivated by discrimination against women, tell the agency of instances when you terminated men for the same misconduct.
5. Remember, the agency doesn’t know your business
In telling your version of the events, share details about your business that will help the agency understand your actions. Think about why the charging party’s performance concerned you. Would that be readily apparent to an outsider?
For example, if you are legally required to have a certain number of staff on hand at all times, explaining this will emphasize why poor attendance would be a significant problem in your workplace.
6. Maintain confidentiality
Information about the charge should be on a need-to-know basis, especially if the charging party is still employed.
If you know investigators will contact employees, couch your message in terms like this: “While we do not feel there is any merit to the allegations, we respect Employee X’s right to bring this charge. If you are contacted by the agency, you should cooperate and be completely honest with the investigator.”
7. Be prompt and cooperative
Don’t put off preparing your response. Anti-discrimination agencies are less inclined to provide extensions than they once were. Failure to respond to a charge in a timely way can result in an adverse determination.
8. Work with legal counsel
Because a discrimination charge can be the first step in a chain of legal actions, you must protect your company’s interests. Many employers ask their attorneys to investigate and prepare the response. At the very least, have an attorney review a draft before you submit it.
9. Contact your insurer
Insurance policies require insured parties to provide prompt notice of claims. Many employment-practices liability policies define claims to include discrimination charges. Failing to apprise the insurer of a charge could result in denial of coverage, not only for the charge but all subsequent legal claims.
10. Preserve all documents
Courts are increasingly imposing harsh sanctions on companies that fail to adequately preserve relevant evidence. When you receive an administrative charge, collect and preserve all documents that could be relevant. You may also want to suspend any routine practices that might result in the destruction of relevant records, particularly electronic information like e-mails, voice mails and Internet usage records.
Final note: Taking the charge process seriously, and defending against the allegations at this stage can increase the likelihood of a favorable determination and help prevent further legal actions.
Author: Carl Crosby Lehmann is an attorney with Gray Plant Mooty’s Employment Law Practice Group in Minneapolis. Contact: Carl.Lehmann@GPMLaw.com.