A Few Practical Tips on Responding to a Discrimination Charge

As an attorney who has spent a large part of his career preparing responses to discrimination charges, I have come to the conclusion that with some legal guidance or oversight, a non-attorney in most cases can prepare an effective response. Indeed there are some large companies that leave this work to their human resources departments, with only some oversight guidance as requested from the legal department or outside counsel.

    This article will discuss some practical tips that can generally be applied by an attorney or a non-attorney in handling responses to discrimination charges. As I would advise against using any legalese in responding to a charge, this article will avoid those references as well.

The charge
   Don’t panic when you receive a discrimination charge. Most people practicing in this area, including the investigators, would agree that the large majority of the charges filed will be found to be “without reasonable cause”, meaning that the investigating agency will determine there are insufficient facts to support the allegations.

    Unfortunately, that will not make your job any easier. You will still need to conduct a thorough investigation and prepare a credible response. If the charge does have merit, as discussed below, there are various options to consider. Occasionally a charge will not include enough facts to enable you to determine the basis for the allegations, in which case you should send a letter to the investigator asking for additional information.

    There is a “Notice of Charge of Discrimination” that accompanies the charge and commonly includes a very short response deadline. You should feel free to promptly request an extension of time for your response when you receive the charge; a 30-day extension is commonly granted.

Timely filing
   Although in recent years the Equal Employment Opportunity Commission, the federal agency responsible for investigating charges, has improved its pre-screening processes, occasionally a charge will be processed for investigation even though it was not filed on time. This can be determined by reviewing the Notice of Charge of Discrimination. On the federal level and in most states, the charge must be filed within 300 days of the alleged incident, and a box in the notice will include the date the incident occurred.

    If you determine that the filing date is more than 300 days from the date of the incident, the charge should be time barred and you should send a letter to the investigator explaining those circumstances. If the agency insists that you are mistaken, you should insist that they explain their position in writing and should include in your response an explanation that the charge is time barred.

Your investigation
   Ideally, an investigation should have been conducted at the time the employee complained about being discriminated against by following the employer’s complaint procedure. If that did not happen, upon receipt of the charge it will be necessary that you and your team conduct a prompt, thorough and objective investigation to determine what happened. Doing it right is very important to effectively respond to the charge or to determine whether a settlement should be explored.

    Ideally, the person conducting the investigation should not be an attorney. Many courts have ruled that the attorney-client privilege is lost when the attorney puts on the investigator’s hat. Rather, to maintain the privilege, the person making the investigation should report everything to the attorney by correspondence that clearly indicates the information is confidential and attorney-client privileged.

    Witnesses should be asked to prepare a statement in their own words and sign and date it. This will preserve their testimony and can be used to support the response. The agency will sooner or later request information on whether other employees have been affected by the same or similar actions of the employer, including their EEO status (race, religion, sex, age etc.).

    You should obtain and carefully consider how that information will be interpreted by the agency. In a termination case, you will need to determine whether other employees who engaged in similar conduct were also terminated. If the information is in your favor, or at least neutral, you can submit it as part of your response. If the information could be interpreted as evidence of discrimination, you might want to consider the settlement approach.

    Please keep in mind that an intent to discriminate need not be found, and it is only necessary for the agency to determine that it appears more reasonable than not that the information on its face demonstrates that discrimination occurred. Take special note that it is a criminal offense to intentionally or recklessly destroy relevant evidence after a charge has been received.

Window of opportunity (“Ya gotta know when to fold ’em.”)
   After you have conducted your investigation and before you have submitted your response, there is an opportunity to determine whether to proceed with the investigation or whether to explore the possibility of settlement. Some companies attempt to settle every charge regardless of merit, which can create a reputation for being a pushover and motivate additional charges. Other companies play it tough and in most cases will go through the investigation and if necessary litigate every case, which can be a very expensive and time-consuming burden from both a legal and an administrative standpoint.

    A middle ground, which I prefer, is to choose your own battles based on the merits of the case. If there is something to worry about, and most likely this would be the appearance of discrimination based on the circumstances, it may be very worthwhile to consider negotiating a settlement.

    At this point you may have the advantage of the government investigator not knowing what you know, and given their large caseload, most investigators will welcome and encourage any effort toward settlement. If you decide to proceed with the investigation, you should be very comfortable with the facts and confident there are no smoking guns. Another option to consider would be participation in the EEOC’s mediation program.

    Both you and the complainant must agree to enter into mediation. One real danger is the possibility of inadvertently disclosing information to the complainant. Otherwise, information disclosed to the mediator is confidential and will not be shared with the EEOC.

    Another drawback is the fact that usually the complainant is convinced that he or she is entitled to a large monetary sum that is unrealistic, and the session may prove to be a waste of time. If the complainant is represented by counsel, you should also be.

Your response to the charge
   Your response is commonly referred to as a “position statement”. You will be required to respond to the charge and also to an attachment that is referred to as the “Request for Information.” The Request for Information is a list of information/documentation that the investigator considers relevant to the charge.

    It is not uncommon for the investigator to follow a form that is utilized for certain types of charges without any reference to the actual charge itself and which includes a request for everything but the kitchen sink. The information you provide at this point is up to you, and you can choose information or add information that is considered to be evidence in your favor, even though it has not been requested.

    Likewise, it is not necessary that you provide all the information or documentation requested, which is usually unduly burdensome, but rather only the information or documentation that you consider in good faith to be relevant to the charge. Although the EEOC and most state agencies have subpoena power and can obtain a subpoena by going back to their office, they will rarely do that if they recognize you are making a good-faith effort to respond to the charge and the Request for Information.

    Although there are different approaches to preparing a response and some attorneys, in my opinion, overdo it by drafting what is essentially a legal brief, my preference is to prepare a narrative response that is as simple as possible. Overly lengthy responses or responses that cite cases are very rarely seriously reviewed by the investigator.

    A brief, concise response, on the other hand, will be more favorably received by investigator, will probably be considered more credible and will put you off on the right step. You should keep in mind that unless you can produce credible, persuasive evidence such as witness statements and the comparative information discussed above, the investigating agency will usually believe the complainant’s version of what happened.

The agency’s investigation
   The investigator should be treated with courtesy and the respect due an officer of our government. I have been continually impressed with the quality of their work, which is usually done under very difficult conditions, such as a very large caseload.

    Although sometimes it may not seem that they are being objective, in most cases they make a good-faith effort to be unbiased. More important, a good relationship with the investigator, which should be mutually cooperative, can only help your chances of obtaining a favorable outcome.

    After the investigator has reviewed your response, it is very often necessary for the investigator to request additional information. You should respond to that request in good faith, but keep in mind that you still have the right to question the relevance or the scope of the information requested.

    It is also possible that the investigator will want to speak to the witnesses. At this point many companies will rely on an attorney to step in. When these so-called “fact-finding conferences” are scheduled, it usually means that things are getting serious. You or the attorney must participate in the conference whenever it is to provide support for your witnesses and to offer any clarification or additional information that may be necessary.

    You might find that these conferences soon turn into a strong-arm effort by the investigator to obtain a settlement. Depending on the circumstances and how strong your case might be, this approach can act in your favor by resulting in a low-dollar settlement. Before attending a conference, you should determine from your employer whether a settlement will be seriously considered–and if so, a dollar range.

    Most important, never fabricate or even shade the truth. If you are caught doing that, regardless of the merit of your case, the investigation will become very aggressive and an adverse determination will be more likely.

    That does not mean however that you are required to disclose every fact at your disposal. By law, however, you must honestly respond to inquiries that are made by the agency as long as the investigation proceeds and there is no effort to settle.

The agency’s determination
   After its investigation is complete, the agency will issue a determination that is usually in the form of either “insufficient evidence to conclude that discrimination took place” or that there is “reasonable cause to believe that discrimination took place.”

    If a reasonable-cause determination is issued, the EEOC and most state agencies will take the position that they will file a lawsuit against the respondent unless the case is settled. This development is, of course, a substantial advantage to the complainant because the respondent must then seriously consider whether to litigate the case at a substantial expense or attempt to settle the case prior to litigation.

    The approach that is then chosen by the respondent will vary depending on the client’s litigation philosophy and will probably also be based on a review of the case by an attorney to determine the likely outcome if the case is litigated. If an insufficient-evidence determination is issued, on the federal level and in most states the complainant gets “another kick at the can” and is still able to file a lawsuit in court within 90 days after the determination is issued.

    However, it is very rare for a lawsuit to be filed after an insufficient-evidence determination because many attorneys do not wish to waste their time on pursuing cases that may lack merit. Also, many complainants do not wish to expend any personal funds to pursue their case. That is the reason it is so very important to prevail or settle on the agency level.

    Even after a reasonable-cause determination is issued, you should feel free to discuss the findings with the investigator and to possibly point out evidence that may have been overlooked. You can also follow with another statement that argues that the determination is faulty in some way. It is very important that you include as much favorable information as possible at the agency level. At some point an agency attorney may be reviewing the file to determine whether the case is “litigation worthy” and the attorney may disagree with the investigator’s findings.

Summary
   This procedure seems like a lot of time-consuming work to be spent on each individual charge, and I believe that all involved, excepting possibly the complainant, would agree. Unfortunately, this is still the only game in town–except for those few cases that are singled out by the EEOC for mediation, which will usually require that the employer be legally represented and add to the expenses.

    Many employers with large numbers of employees are burdened with these cases, the agencies are underfunded and find it difficult to handle their increasing caseloads, and the courts are swamped with discrimination-related lawsuits. It is very likely that at some point in the near future the system will need to be substantially revamped.

    Until that day comes, however, this system should be accepted for what it is: a necessary and well-intentioned but clumsy and time-consuming effort to enforce the anti-discrimination laws of our country. Hopefully this article will be useful as a short primer and enable more of this work to be more readily handled across a broader spectrum of employer representatives.