How employers respond to an Equal Employment Opportunity Commission complaint often spells the difference between a speedy, successful defense and a nightmare investigation.
A disgruntled employee goes to the EEOC and files charges of bias. Here’s how to respond:
- Tell the whole story. Because an EEOC charge often contains just one or two paragraphs, companies tend to respond in a similar, brief way. Don’t.
Put together a comprehensive response, detailing the circumstances surrounding the employment relationship and the reasons for an adverse employment action. This is the time you cut the claim off at the knees, so don’t skimp on info. - Include documentation. If you have supporting documents, attach them in your response. What’s appropriate? You name it: time sheets, e-mails, performance evaluations — anything that supports your case.
- Check and double-check your documentation. Then check it again, bringing in others to help. The documentation should be accurate and consistent. If it isn’t, a smart attorney will use glitches to show a judge that you’re not being honest.
- Mention similar decisions. One of the best ways to demonstrate that a decision wasn’t motivated by unlawful discrimination is to point to the same actions being taken in similar situations against other employees.
For example, if you terminated a woman for misconduct and she says her termination was motivated by sex discrimination, detail instances when you terminated men for the same misconduct. - Explain what your company does. Give an EEOC investigator a full picture of your business and how the employee’s behavior or conduct affected your business. For instance, if you fired someone for being late too many times, explain why punctuality is so important to your operation.
- Let employees know only what they need to know. There’s a chance investigators will contact employees, and they should be prepared for it, without knowing all the details. A typical message to employees: “While we do not feel there is any merit to the allegations, we respect Employee X’s right to bring this charge. If you are contacted by the agency, you should cooperate and be completely honest with the investigator.”
- Don’t delay. Putting off your response is never a good idea.
- Contact a lawyer. It’s almost unavoidable. At the very least, you’ll want an attorney to review your response and be prepared for a legal chain of events.
- Contact your insurer. Many employment-practices liability policies define claims to include discrimination charges. Failing to let your insurer know about the charge could result in denial of coverage, not only for the charge but all subsequent legal claims.
- Put all relevant documents in a “lock box.” When you receive a notice of a charge, collect and preserve all documents that could be relevant. That means you may want to let IT and other departments know that they have to suspend routine “cleaning out” procedures that could result in destruction of relevant records. If you don’t, your lawyer will have a hard time convincing a judge that the destruction of documents was all just a big, unintentional mistake.
