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Terry J. Harmon, Esq.Sniffen & Spellman, P.A.123 North Monroe Street

Tallahassee, Florida 32301tharmon@sniffenlaw.com

Responding to EEOC and OCR Complaints

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NOTHING IN THIS PRESENTATION IS DESIGNED TO RENDER ANY LEGAL OR OTHER PROFESSIONAL OPINION. DUE TO THE RAPIDLY CHANGING NATURE OF THE LAW, INFORMATION CONTAINED IN THIS PRESENTATION MAY BECOME OUTDATED. AS A RESULT, ANY INDIVIDUAL USING THIS OUTLINE AS A REFERENCE SHOULD ALWAYS RESEARCH ORIGINAL SOURCES OF AUTHORITY AND UPDATE INFORMATION TO ENSURE ACCURACY WHEN DEALING WITH A SPECIFIC PROBLEM OR ISSUE, OR CONSULT LEGAL COUNSEL TO RENDER A SPECIFIC OPINION AS TO A SPECIFIC ISSUE.

Notice

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Enforces federal discrimination laws (applicants and employees)

What laws does the EEOC enforce?◦ Title VII of the Civil Rights Act of 1964 (Title VII)◦ The Pregnancy Discrimination Act◦ The Equal Pay Act of 1963 (EPA)◦ The Age Discrimination in Employment Act of 1967 (ADEA)◦ Title I of the Americans with Disabilities Act of 1990 (ADA)◦ Sections 102 and 103 of the Civil Rights Act of 1991◦ Sections 501 and 505 of the Rehabilitation Act of 1973◦ The Genetic Information Nondiscrimination Act of 2008

(GINA)

The EEOC

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What type of discrimination is prohibited?◦ Age◦ Disability◦ Equal Pay/Compensation◦ Genetic Information◦ Harassment◦ National Origin◦ Pregnancy◦ Race/Color◦ Religion◦ Retaliation◦ Sex◦ Sexual Harassment

The EEOC

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Charge of Discrimination

◦ Receive within 10 days of filing

◦ Identity of investigator

◦ Initiation of investigation

◦ Early resolution (settlement and mediation)

◦ Standard: reasonable cause to believe discrimination occurred

The EEOC

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What do you do internally when you receive a Charge of Discrimination?

◦ Notify insurance carrier and legal counsel◦ Litigation hold letter

Investigate (key to effective response) Gather personnel file of employee;

Preserve all electronic media and emails; Interview witnesses; Social Media research; Prepare witnesses for EEOC interviews; and Obtain affidavits.

◦ Develop defenses◦ Assess issues

What else?

◦ Draft response to Charge of Discrimination;◦ Respond to any Request for Information from the investigator; and◦ Respond to request for EEOC on-site visit.

The EEOC

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Issues to consider when investigating

◦ Attorney-client privilege;◦ Public records laws;◦ Organization as client (not employee);◦ While an assertion of privilege over internal investigative

materials may be considered by the EEOC, the agency will resort to the issuance of a subpoena and an enforcement proceeding in federal court if it believes that the privilege either is inapplicable or has been waived. EEOC v. City of Madison, 2007 WL 5414902 (W.D. Wisc. 2007) EEOC v. Outback Steakhouse of Florida, Inc., 251 F.R.D. 603

(D. Colo. 2008)

The EEOC

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What to include?◦ Background of Board/District;◦ Response to Specific Allegations;◦ Overview of Applicable Law;◦ Address Jurisdiction;◦ Failure to Establish Prima Facie Case;◦ Documents in Support; and◦ Efforts in Support.

Response to Charge

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Communicating with the investigator

◦ Confirm agreements in writing;◦ Consider needed extensions;◦ Take his or her pulse; and◦ Identify scope of issues being investigated.

EEOC investigators are sometimes slow to respond.

The EEOC

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How long does EEOC investigation typically last?◦ EEOC says the average is 182 days.

What are possible outcomes?◦ No reasonable cause - charging party will be given a

Dismissal and Notice of Rights giving them 90 days to file a lawsuit.

◦ Reasonable cause exists - parties receive a Letter of Determination (invitation to participate in conciliation). EEOC can also file a lawsuit or give charging party Notice of Right to Sue (90 days to file federal lawsuit).

The EEOC

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United States Department of Education’s Office for Civil Rights

Enforces federal laws:◦ Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the

basis of race, color or national origin;◦ Title IX of the Education Amendments of 1972, which prohibits discrimination

on the basis of sex;◦ Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination

on the basis of disability; ◦ Age Discrimination Act of 1975, which prohibits discrimination on the basis

of age; ◦ Title II of the Americans with Disabilities Act of 1990 which prohibits

discrimination on the basis of disability; ◦ Boy Scouts of America Equal Access Act, part of the No Child Left Behind

Act of 2001, which prohibits denial of access to or other discrimination against the Boy Scouts or other Title 36 U.S.C. youth groups in public elementary schools, public secondary schools, local education agencies, and state education agencies that have a designated open forum or limited public forum.

OCR

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Who can file a complaint?

◦ Anyone

◦ Discrimination must be based on race, color, national origin, sex, disability or age, or violations of the Boy Scouts of America Equal Access Act.

◦ 180 calendar day deadline for filing (or 60 days after completion of internal grievance)

OCR

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Complaint handling

◦ OCR determinates if it has jurisdiction over allegations and whether allegations give rise to a violation of applicable laws. OCR also looks at timeliness.

◦ OCR typically will not investigate if EEOC or other agency investigation initiated.

If an investigation is initiated, OCR will notify parties.

OCR

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What do you do internally when you receive notice of an investigation?

◦ Notify insurance carrier;◦ Litigation hold letter;◦ Gather personnel file of employee;◦ Preserve all electronic media and emails;◦ Interview witnesses (i.e. investigate);◦ Prepare witnesses for OCR interviews;◦ Obtain affidavits; and◦ Assess issues.

What else?

◦ Draft response investigation and gather responsive documents.

OCR

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The investigation◦ Telephonic interviews;◦ Site visits; and◦ Document requests.

Early Complaint Resolution (complainant)

Early Resolution (OCR)

The outcome◦ Notification through a letter of findings.

There is insufficient evidence to support a conclusion that the recipient failed to comply with the law; or

A preponderance of the evidence supports a conclusion that the recipient failed to comply with the law.

Can complainant appeal? 60 days from date of determination to appeal in writing to the Director of the

Enforcement Office.

OCR

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What if noncompliance?

◦ Voluntary resolution agreement Includes monitoring

◦ If voluntary resolution agreement refused, school district has 30 days to willingness engage in negotiations or OCR will issue a Letter of Finding. If refusal to negotiate continues, OCR issues a Letter of Impending Enforcement Action and will again attempt to obtain voluntary compliance.  

Subsequent enforcement proceedings; Loss of funding; and/or DOJ intervention.

OCR

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Questions?

Terry J. Harmon, Esq.Sniffen & Spellman, P.A.123 North Monroe Street

Tallahassee, Florida 32301tharmon@sniffenlaw.com

Conclusion