Notice Of The Charge And The Employer example essay topic

The mission of the EEOC, as set forth in its strategic plan, is to promote equal opportunity in employment through administrative and judicial enforcement of the federal civil rights laws, education and technical assistance. Overview The EEOC carries out its work at headquarters and in 50 field offices throughout the United States. Individuals who believe they have been discriminated against in employment begin the processes by filing administrative charges. Individual Commissioners may also initiate charges that the law has been violated. Through the investigation of charges, if the EEOC determines there is "reasonable cause" to believe that discrimination has occurred, it must then seek to conciliate the charge to reach a voluntary resolution between the charging party and the respondent. If conciliation is not successful, the EEOC may bring suit in federal court.

Whenever the EEOC concludes its processing of a case, or earlier upon the request of a charging party, it issues a "notice of right to sue" which enables the charging party to bring an individual action in court. The Commission also issues regulatory and other forms of guidance interpreting the laws it enforces, is responsible for the federal sector employment discrimination program, provides funding and support to state and local fair employment practices agencies (FEPA's), and conducts broad-based outreach and technical assistance programs. The Process Once an employee or applicant files a charge, the EEOC then serves notice on the employer, usually by mail, that a charge has been filed against it. This notice normally includes a copy of the actual charge filed by the employee or applicant. Title VII and the ADA require that notice be served on the employer within 10 days after the Commission receives the charge, although the EEOC's workload often prevents it from meeting this statutory deadline. The EEOC's unintentional failure to meet this deadline, however, does not prevent the charge from proceeding, unless the employer can show that it was substantially prejudiced by the delay.

The filing of the charge triggers an EEOC investigation into whether or not there is reasonable cause to believe that the employer did in fact illegally discriminate against an individual in violation of Title VII, the ADEA the EPA and / or the ADA. There are no restrictions on the duration of an EEOC investigation, and the EEOC has the authority to inspect the employer's workplace, obtain employer documents, and interview witnesses. An employer may be asked to submit a written statement of position to explain its version of events. At some point in the investigation, a fact-finding conference might be held.

Relatively informal, a fact-finding conference is attended by the charging party, respondent and necessary witnesses. No official record is made and witnesses are not placed under oath. Most employers bring counsel to the conference. After concluding its investigation, the EEOC makes a determination as to whether there is reasonable cause to believe that the alleged discrimination occurred. A reasonable cause determination indicates that "it is more likely than not" that illegal discrimination took place. A no reasonable cause determination means that the EEOC has not found sufficient evidence to support a finding of discrimination.

While a "no cause" finding does not bar the complaining party from subsequently filing suit in state or federal court on the same claim, as a practical matter most employees do not pursue their claims after the EEOC issues a "no cause" finding. If the Commission does find reasonable cause to believe that discrimination occurred, it is obligated to try to eliminate the unlawful practice through a process known as "conciliation". In other words, it tries to settle the case. If the employee, the employer and the Commission reach an acceptable agreement, the parties will sign a conciliation agreement, which must provide that: "h (1) a notice be posted informing employees of their right to be free from discrimination and that the employer will not engage in the unlawful conduct alleged in the charge; "h (2) specific corrective action will be taken to prevent the discrimination from occurring again; "h (3) the charging party will be placed in the position he or she would have occupied if the discrimination had not occurred; "h (4) the charging party will be paid what he or she would have earned but for the discrimination, minus interim earnings; and "h (5) the employer agrees to stop engaging in the discriminatory practice.

If the parties do not reach agreement within 30 days, the EEOC can then file suit in federal court. However, no statements made by any party during the conciliation process can be used in any subsequent lawsuit. The conciliation process is not a prerequisite for an individual to file a lawsuit in state or federal court. Under the ADEA, the employee must merely wait 60 days after filing a charge with the EEOC and the appropriate state agency before filing a lawsuit against the employer. Title VII and the ADA require the EEOC to issue a "Notice of Right to Sue", also known as a "right to sue letter", before an individual can file a suit in court.

The right to sue letter can be issued at the complaining party's request or by the EEOC following its disposition of a discrimination charge. The employee has 90 days after receiving the right to sue letter to file suit. Employers should take any charge of discrimination seriously. The employer must keep in mind that, at a minimum, it needs to have a legitimate, non-discriminatory reason for taking the action in question.

In addition, an employer's response will be evaluated by persons who have a different perspective than the employer. What may appear to an employer as a benign, routine employment action can be perceived by a jury as the most pernicious, discriminatory deed. With this in mind, an employer should structure its response to show that its action was not only legal, but also fair. The eleven steps discussed below have proven successful and effective methods employers can use to defend themselves against a charge of discrimination.

1. Review the Charge for Procedural Defects. Many times, the employee fails to follow proper procedure in filing his / her complaint against the employer. Charges can be, and often are, dismissed for procedural defects. For example, a person who complains of illegal discrimination usually must file a charge with the EEOC within 180 days of the discriminatory act or within 300 days if the charge is initially filed with an EEOC-approved enforcement agency. If the employee misses a filing deadline, the EEOC may dismiss the complaint as untimely.

Furthermore, if the EEOC unreasonably delayed sending notice of the charge and the employer was substantially prejudiced thereby; the complaint could be dismissed. By reviewing a charge for such procedural defects, an employer may save itself the burden and expense of having to respond fully to a charge of discrimination. 2. Immediately Review Complainant's Personnel File. As soon as an employer receives the notice of a charge, a copy should be forwarded to the Human Resources Department and / or legal counsel, and the complainant's personnel file should be examined. The personnel file often contains most of the essential records and details pertinent to the case, including work quality evaluations, attendance records, prior disciplinary documents, and a termination or resignation letter.

From the facts present in an employee's file, the employer is best able to reconstruct and defend its reasons for taking the disputed employment action. In this regard, all persons responsible for handling and responding to the complaint must be advised that all records relating to the charge -- even those records that do not support the company's position -- must be kept until there is final resolution of the complaint. If relevant records are not preserved, the EEOC (or a court if the individual files a lawsuit) usually makes all inferences from any missing records against the employer. For example, if the employee's latest work quality evaluation is missing from the personnel file, the EEOC likely will infer that the employee was performing his / her job adequately when the adverse employment action took place. Lost records can be fatal to an employer's case. 3.

Ensure No Retaliatory Action Is Taken. Under each of the EEOC-enforced statutes, it is illegal for an employer to take adverse employment action against any of its employees for filing a charge in good faith. Most of the statutes also prohibit an employer from taking retaliatory action against any employee who opposes any unlawful action or participates in an investigation or hearing related to the charge. Taking adverse action against the complainant or any other employee on these grounds, therefore, will compound the company's problems by potentially creating employer liability for violations of the statutory provisions prohibiting retaliation, even if the initial charge of discrimination is found to be groundless. The employer should ensure that the complainant's supervisors, managers, and co-workers understand and acknowledge their rights and responsibilities in this regard.

They cannot retaliate against or single out the complainant for harsh treatment; instead, the complainant must be treated as if his / her discrimination complaint had not been filed. Without this direct communication, a manager or supervisor may not realize that such retaliation is against the law. This does not mean, however, that the employer can take no adverse action against the complainant. If the complainant acts in a manner that would otherwise merit discipline, the employer may take disciplinary action.

Filing a charge of discrimination or participating in an investigation does not shield the employee from proper disciplinary measures. Extreme care should be taken, however, to document properly the reasons for the disciplinary action. The employer also must be prepared to demonstrate that this employee, or any other employee committing the same offense, would have been disciplined in the same manner, regardless of whether a complaint was filed or not. The bottom line: the employee should be disciplined in exactly the same manner that he / she would have been disciplined had no charge been filed. 4. Conduct an Investigation (Gather the Facts).

The employer should conduct its own investigation of the charge as quickly as possible to discover all relevant facts. Only through the discovery of all relevant facts can an employer properly evaluate and defend against a charge of discrimination. A "team" approach pairs a HR representative with legal counsel often proves the most effective device for ensuring a thorough and complete investigation. The HR representative and legal counsel should jointly design and conduct the investigation.

Having an attorney assist in the investigation presents several advantages. For example, documents created during the investigation are more likely to be protected from disclosure to the complaining party in any future lawsuit if an attorney assists in their creation. This protection arises from the "attorney work product" doctrine, which shields documents created in anticipation of litigation from discovery, unless the plaintiff can show that he / she has a substantial need of the materials and is unable without undue hardship to obtain substantially equivalent materials by other means. This protection might not extend to documents created by a company employee who conducts an investigation into a charge of discrimination as a matter of course, without guidance or advice from counsel. An attorney also knows the nuances and subtleties of the law and can ensure that these issues are explored thoroughly during the investigation.

Finally, depending on the circumstances, employees sometimes feel more comfortable speaking with counsel, whom employees often perceive as a "neutral" third party. The investigation actually starts with a review of documents in the employee's personnel file, but should be expanded to include, among other things, a review of applicable company policies; at least one interview with potential witnesses; and a review of internal documents for any prior incidents similar to the action on which the complaint is based. Each of these facets of the investigation is discussed below. All potentially applicable policies should be reviewed.

The lack of effective anti-discrimination policies can be damaging to an employer's case. On the other hand, a well-publicized, strictly enforced, non-discrimination policy can prove invaluable to an employer defending against a charge of discrimination. For example, an employer may have in place a policy that makes clear that sexual harassment will not be tolerated by the company and that offenders will be subject to discipline up to and including discharge. The policy also may state that supervisors and employees are required to report promptly any sexually harassing conduct that they experience or witness and that no one will be retaliated against for honest reporting of such conduct. The employer can use this policy to show that the employer did not condone any alleged harassment and that the alleged perpetrator did not have any authority whatsoever to conduct him or herself in such a manner. By reviewing its policies, an employer also may discover that the complaining employee did not follow proper company procedure in reporting the complaint.

All of this information can be used by the employer in responding to the complaint. Both an attorney and a HR representative should interview any potential witness in private. Most of the time, witnesses will include the employee's supervisor, co-workers, and other supervisors who have observed the employee's performance. When possible, the investigator should attempt to obtain a statement from the complaining party.

Also, the person responsible for the alleged discriminatory conduct and any former employees with information pertinent to the charge should be interviewed. Each witness should be reassured that there will be no retaliation for participating in the investigation. A complete statement should be taken from the witness on any subject that may be remotely relevant to the charge. The attorney should be responsible for taking notes of the interview. The investigators should refrain from making statements regarding the credibility of witnesses, the validity of the employee's complaint or the likely outcome of the investigation.

After the interview is completed, the attorney and employer should determine whether the witness's interview should be documented in a witness statement and, if so, whether the witness should sign the statement. If it is decided that a witness statement is needed, the attorney should be responsible for drafting an affidavit for the witness to sign. An employer's investigation should include a review of whether situations similar to the complaint occurred in the past and, if so, how they were handled. The gravamen of any charge filed with the EEOC is that the complaining party was not treated in the same way as someone else similarly situated.

If this is true, the EEOC is likely to infer that this different treatment was a result of the employee's race, age, gender, disability, etc., and the employer faces liability if it cannot adequately justify its actions. However, if the employer can show that the employee was treated the same as any other similarly situated employee was treated or that it had other legitimate and lawful reasons for treating the complainant differently, the employee's case is weakened, and the probability of getting it dismissed increases. Thus, employers should ascertain whether employees facing the same or similar facts as complainant were treated in the same manner. For example, if the complaining party was dismissed for having seven unexcused absences within a six month period, the employer should find examples of other employees who were dismissed on the same grounds.

5. Evaluate the Claim (Determine Your Exposure). An investigation uncovers relevant facts to support or refute the charge of discrimination. After the investigation is completed, the employer must earnestly and truthfully evaluate whether it should proceed in defending against the charge, or whether it should pursue a settlement strategy. If the employer determines that the risk of proceeding outweighs the benefits of defending against the claim, it may wish to pursue settlement negotiations at an early stage of the EEOC process, before drafting a statement of position. By so doing, the employer does not have to reveal any weaknesses in its case and may obtain a more favorable settlement than if it waited until after it briefed the issues in a statement of position.

Moreover, this strategy may reduce potential costs by cutting off back pay liability. In making this determination, the employer should consider several factors, including whether counsel currently represents the employee; the probability of a successful defense on the merits; the employee's likelihood of success on the merits of his / her claim; and the amount of damages potentially recoverable. 6. Submit a Statement of Position.

The employer usually is asked to submit a written statement of position responding to each of the allegations in the charge. This official response is a critical document, since it is used not only by the EEOC to evaluate the employee's claim, but also can be used against the employer in later proceedings. Furthermore, the document is freely discoverable in litigation. Thus, the document should be prepared with that in mind, and any documents or information that are not essential to the case should not be revealed. Care must be taken to ensure that all information submitted is accurate in every respect.

With these general principles in mind, employers should follow some basic steps in preparing and submitting the position statement: "h Pay particular attention to the factual details of the case and clearly explain them. The investigator should have a clear idea of the employer's business, how it operates, and what its goals are. Show how the complaining party's job fits into the "big picture."h Explain your version of the facts. Reveal relevant facts as found by the internal investigation. Respond to each fact the employee sets forth in his / her claim. Do not let the claimant's version of the facts be the only version the investigator knows.

If there are adverse facts, confront them and explain them in the best possible light. "h Fully answer each allegation. Any unanswered allegations can only hurt you. "h Articulate the legitimate, non-discriminatory reason for the adverse employment action. This reason should be supported by facts, and should not change over time. Changing the articulated reason for taking the adverse action only reveals that it may not have been the real reason for the action. "h Have every supervisor and managers involved read the position statement and ensure its accuracy before it is submitted to the EEOC. Although a lawyer does not have to write the statement of position, if counsel participated in the investigation, it usually is a good idea for that person to write the position statement because he or she is familiar with the facts of the case and the legal issues involved. At a minimum, counsel should review the document before it is submitted because of the legal ramifications beyond the present EEOC proceedings.

7. Prepare for the fact-finding or Mediation Conference. After a statement of position is submitted, the EEOC may conduct a fact-finding conference between the two parties. The fact-finding conference is an opportunity for the EEOC to get the parties to agree on the essential facts and issues in the case. Most investigators also try to settle the case at this stage of the proceedings, so bringing counsel to the fact-finding conference usually is a good idea.

(Under newly adopted EEOC procedures, the investigator will attempt to mediate a settlement between the parties. It is not certain at this time whether the mediation will take place in lieu of the fact-finding conference. In any event, the employer should prepare for mediation in a similar fashion.) By this point in time, an employer should be intimately familiar with the facts of the case and the strengths and weaknesses of its and the employee's case. If not, it should review the factual and legal issues involved.

Any subtle concerns the employer may have about the case should be discussed with legal counsel. Further, the employer should have evaluated its case and considered whether to pursue a settlement strategy. Whether to pursue a settlement strategy should be made in consultation with counsel and should be made on a case-by-case basis. During the mediation or fact-finding conference, the employer should not agree to any facts that are not supported by its investigation and should present favorable facts and legal precedent in a subtle, forceful manner, reiterating the strengths of its case.

8. Prepare for an EEOC Investigation. The information gathered by the EEOC in its investigation provides the factual foundation it needs to ascertain whether there is reasonable cause to believe discrimination occurred. Preparing for and handling the EEOC investigation is critical and often determines whether the employer will be successful in defending against a charge of discrimination.

Many times, the EEOC wants to conduct its fact-finding investigation "on-site", i. e., on the employer's premises. The employer should do two things before the EEOC investigator arrives: (1) prepare potential witnesses; and (2) narrow the scope of the investigation to the relevant issues. Because many EEOC investigations do not take place for many months, or even years, after the conduct-giving rise to the complaint occurred, the employer should meet privately with each witness and go over his / her recollection of the facts. Each witness should be told, yet again, that no retaliation against employees who talk to an EEOC investigator will be tolerated. Further, the employer should be careful not to give the impression that it is trying to influence the employee's testimony. Each employee should be told that the employer has the right to be present during interviews of managerial employees, but does not have the right to be present during an interview of non-supervisory employees.

Although the EEOC has broad investigative authority, the employer should work to convince an investigator to limit or clarify the scope of the investigation by objecting to certain document requests as irrelevant or unduly burdensome. In this manner, the employer can help to keep the investigator and the investigation focused on the narrowest issues in the case. The investigator should not be allowed to go on a "fishing expedition" through an employer's records. 9. Prepare for Settlement Negotiations. If the parties have not reached a settlement at this point in the EEOC process, an employer should be prepared for settlement negotiations instigated by the EEOC investigator.

Before this occurs, an employer should re-evaluate its position and exposure in light of recently discovered facts or developments in the law. If a settlement is reached, an employer should attempt to incorporate two specific provisions in the settlement agreement. First, a general release from the complaining party should be obtained. This releases the employer from any and all claims the employee may have and protects the employer from lawsuits based on the same set of facts. Without it, an employee may try to sue in state court based on a state common law theory. Second, the agreement should contain a confidentiality clause.

This requires both parties to keep the provisions of the settlement agreement secret. 10. Review Policies and Procedures. The employer should review its policies and procedures in light of the charge to determine whether any changes are warranted. The root cause of the complaint should be eliminated. For example, if a particular policy or procedure led to the charge, it needs to be revised.

Any policy or practice that helped the employer defend itself should be used as a model. 11. Determine Whether Further Training or Disciplinary Action Is Needed. The employer needs to ensure that the discriminatory practice or action, if it did occur, is stopped and that it does not occur again. In this regard, an employer should review the circumstances surrounding the charge and determine whether the individuals involved were properly disciplined.

As part of this analysis, the employer should evaluate whether a lack of training led to the filing of the charge. If so, the employer should consider whether managers and employees need training in a particular area. By taking such action, the employer can not only assist in its defense of the present charge, but also help prevent future charges. CONCLUSION The recent, dramatic increase in the number of EEOC complaints charging employers with illegal discrimination has forced employers to realize that they are exposed to increasing amounts of liability -- including punitive damages -- for remarks and conduct of their managers and employees. This increased liability reinforces the importance of effectively handling and responding to a charge of discrimination filed with the EEOC.

By properly handling the charge at its early stages, an employer can reduce significantly, or possibly eliminate, potential liability. REFERENCE PAGE web web.