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Tips for Employers Facing a Charge of Discrimination

September 20, 2017

When an employer receives a charge of discrimination from the U.S. Equal Employment Opportunity Commission or a state agency that enforces anti-discrimination laws, it is important that the charge be handled properly.  That is because administrative charges are often followed by discrimination lawsuits. 

Below are tips on what to do when an employer receives a discrimination charge:

1. Don't Ignore It

Get counsel involved.  Send the charge to the company’s labor and employment attorney; the attorney can send the agency a letter of representation requesting that all communications from the agency go through the attorney.

Notify insurer.  If the company has EPLI coverage, the charge should also be sent to the insurer.

2. Preserve Relevant Documents

Review Request For Information. The charge usually will be accompanied by a request for relevant policies, files, and comparative data from the investigating agency, and the company has an obligation to comply.

Issue Litigation Hold.  The attorney also may send the company a list of documents he/she needs to review and a “litigation hold” notice to share with appropriate personnel to let them know not to delete relevant documents or electronic data.

3. Don't Say or do Anything that Could be Construed as Retaliation

Enforce anti-retaliation policy.  If the charging party is still employed by the company, remind his/her managers and supervisors about the company’s anti-retaliation policy.

Avoid generating another claim.  The anti-discrimination laws prohibit retaliation against individuals who complain of violations. For various reasons, retaliation claims can be harder to defend than discrimination claims.

4. Keep it Confidential

Limit disclosures.  Information about the charge should be kept confidential and shared strictly on a need-to-know basis.

5. Work with Counsel to Investigate the Allegations in the Charge

Collect information and identify witnesses.  The attorney’s investigation will involve reviewing documents and interviewing witnesses, and those witnesses often are managers or supervisors of the charging party.

6. Prepare a Position Statement

Set out legitimate basis for actions and other defenses.  The attorney will work with HR to prepare a position statement, which is the company’s official response to the charge.  It should explain the legitimate, non-discriminatory, and non-retaliatory reasons for the actions taken regarding the charging party and other relevant defenses.

Provide grounds for dismissal.  A well-drafted position statement supported by relevant facts, documentation, and references to legal precedents can help to convince the agency that the charge is not valid and should be dismissed.

7. Consider Mediation where Appropriate

In some cases it makes sense to consider mediation by the agency or a private mediator as an early resolution of a charge can result in a global release of all potential claims without an admission of liability and a savings for the company in terms of time and money.

In conclusion, charges filed with the EEOC or a similar government agency can have serious consequences as every charging party is a potential plaintiff in a lawsuit.  So make sure charges are handled correctly.

Our Insights are published as a service to clients and friends. They are intended to be informational and do not constitute legal advice regarding any specific situation.