Any employee who feels he/she has been discriminated against or harassed can file a complaint against her employer with the Federal Equal Employment Opportunity Commission (EEOC) or State Fair Employment Office. Whether or not the complaint has merit, the employer must then spend time, effort, and often money to defend their position. Knowing what steps to take can help an employer show cooperation, while positioning themselves for defense if needed.
Once the EEOC receives a complaint, the employer will be notified by letter within 10 days. The letter does not imply findings against the employer. Rather, it is the first step the EEOC will use to determine whether there is reasonable cause to believe a violation has occurred. The letter will request a “Statement of Position” from the employer. This document is where the employer tells their side of the story. However, the information provided may be used for or against you. Therefore, there are three things to consider before submitting your position statement:
- If you have an attorney, it may be wise to notify him or her of the complaint and ask for a review of the position statement prior to sending it to the EEOC.
- If you have an Employer Professional Liability policy (EPL), chances are it requires you to contact the carrier prior to submitting the position statement.
- You must report only the facts. These facts will need to be verifiable, and opinion is not advised.
If you do not have or choose not to contact your attorney, I highly suggest reviewing the EEOC resource guide on effective position statements.
Next, the EEOC follows up with a formal Request for Information. The RFI may ask the employer to submit policies, the charging employee’s personnel files, the personnel files of other individuals and other relevant information, such as proof of training and contact information for potential witnesses. The EEOC may also request a visit to the workplace to view evidence and interview potential witnesses. Although this can speed up the information gathering process, it can also be disruptive to the company and create an over-exposure of facts. If the EEOC does not come on-site, they will likely still contact employees who may have pertinent information or may be witnesses to the case. They have the right to do this with non-management employees without the employer’s knowledge or permission.
It is important to provide all information requested by the deadline provided. In the case of unforeseen circumstances that make it impossible to meet the submission date, an extension must be requested from the EEOC Investigator. Once submitted, the EEOC will review the information to determine whether the complaint merits further action. One or more of the following actions will then take place.
- A Dismissal and Notice of Rights will inform the employee that the EEOC has dismissed the case, yet she still has the right to file a lawsuit with the federal court within 90 days.
- A Letter of Determination will state that there is reasonable cause to believe that discrimination/harassment has occurred and invite the parties to join the agency in seeking to resolve the charge through an informal process known as conciliation.
- If conciliation fails, the EEOC has the authority to enforce violations of its statutes by filing a lawsuit in federal court on behalf of the employee or issuing the employee a Notice of Right to Sue, and she may file a lawsuit in federal court within 90 days.
Although this process can be a time burden, preparing ahead by conducting and documenting prompt, thorough and impartial investigations can put a quick end to the fact-finding process, and limit liability exposure. InvestiPro can help. See our demo at www.goinvestiPro.com.