Presented by Jodie-Beth Galos, Esq.

EEOC Investigations: Minimize Your Liability

At-Will: Your employer can hire or fire at any time

for any reason other than an unlawful one.

Plaintiffs must file a charge with the EEOC before going to court.

Complaining parties can file a complaint in court regardless of the EEOC finding.

Prevent the EEO investigation from gaining steam.

Filing the EEOC Claim

EEOC Hot Spots

1. Eliminate barriers in recruitment.!2. Protect immigrant, migrant, and other

vulnerable workers.!3. Address emerging discrimination issues.!4. Enforce equal pay laws.!5. Preserve access to the legal system.!6. Prevent harassment through systematic

enforcement and outreach.

Smaller companies may want to consult a professional.

Make sure your attorney is knowledgeable in EEOC investigations

Inform your insurer if your policy covers discrimination charges.

EEOC Complaints

• You will be notified within 10 days of when a charge is filed against you.!

• Acknowledge the receipt of the charge, but don’t admit or promise anything.!

• You won’t get a copy of the affidavit, but someone may read it to you.

EEOC Charges

Recap all phone conversations in writing.

A biased investigator can allow you to be reassigned.

Try to stop the clock on damages.

EEOC

Conduct an internal investigation.

Have HR review all actions.

Interview all witnesses.

InternalInvestigation

• Examine all relevant documents.!• Keep information to just the facts.!• Attorney-client privilege won’t apply to

witness interviews.

Documents

Ellerth-Faragher defense

Clearly differentiate the investigator role with the outside attorney.

PrivilegeAttorney-Client

Mediation is offered as an alternative to the traditional process.

The mediator helps parties agree on a mutually acceptable outcome.

Mediation

It’s free.

It’s neutral.

It might save time and money.

Mediation discussions can’t be used against you.

MediationAdvantages to

It fosters cooperation.

It minimizes present and future disruptions.

You can’t be forced to settle.

Most employers and charging parties would use mediation again.

MediationAdvantages to

Settlementsu It’s best to settle when

the organization is guilty.!u There’s no admission of

liability in settling.!u Make sure to include a

confidentiality clause when settling.

Settlementsu It might not be worth it for

settlements or mediation when the charging party is just waiting for a right- to-sue letter.!

u If mediation is not used or doesn’t work, the charge is investigated.

The position statement allows employers to present facts to show the allegations are false.

Be prompt and provide the information the EEOC asks for.

Work out a new due date if circumstances prevent you from being timely.

PositionStatement

If you think the Commission is fishing, you can politely inquire why the documents are necessary.

Investigation

Stick to the facts in your position statement.

Deny discrimination in your introductory paragraph.

u Include a background statement.!

u Outline the charging party’s employment history.!

u Include your company’s anti-discrimination, anti-harassment, and no- retaliation policies.

EEOC Investigator

Provide relevant code-of-conduct details if the charging party violated them.

Provide comparative evidence.

Choose comparators carefully.

Investigators will be more receptive to references from the EEOC Compliance Manual.

Have all managers review the position statement for accuracy.

Don’t include items that aren’t relevant in the position statement.

PositionStatement

Have a lawyer review the document before submitting it.

The EEOC may subpoena reasonably related information.

The organization may object within 5 days if it thinks the subpoena is too broad.

Failing to file a position statement may cost more time and money.

Investigationsu On-site investigations are

becoming more routine.!u Schedule the on-site visit

to give enough time for an internal investigation.!

u Prepare for the visit by making sure your papers are in order.

On-Site

Employers may have counsel present during management interviews, but not others.

Brief managers prior to interviews.

Tell employees to be honest and get an idea of what they will say.

Interviews

Investigationsu After gathering data, the EEOC will

determine the merits of the case.!• Dismissal and Notice of Rights!• Letter of Determination!

u Conciliation allows for negotiation of practices for the employer to change.!

u A lawsuit can follow failed conciliation.

Employers must preserve relevant information for litigation.

Take a broad understanding of what might be relevant.

Stop any routine practices that could result in information destruction.

PreserveInformation

EEOC Investigator

u Check to see if supervisors have a file they have maintained.!

u Employees using their own devices can cause confusion.!

u Work with your IT department.

Investigationsu The last step will be a systemic

litigation focus.!u Arise based on:!

1. A charge filed as pattern or practice investigation!

2. The EEOC initiates on its own authority under relevant laws.!

3. The EEOC investigates based on a filing of a Commissioner’s Charge.

Investigationsu Employers should have

an initial response plan.!u Don’t forget about public

relations expertise.!u Sit down with

investigators and explain the situation.

1. Know the EEOC’s 2012 SEP.

2. Not being a jerk in business can pay off.

Summary

Welcome to !EEOC Investigations: Minimize Your Liability

Q&AWith Jodie-Beth Galos, Esq.

Thank you for joining us today!