IT’S NEVER A GOOD DAY WHEN A CLIENT RECEIVES A CHARGE OF DISCRIMINATION. AS A PARALEGAL THERE ARE MANY WAYS YOU CAN HELP YOUR ATTORNEY AND THE CLIENT IN RESPONDING TO THE CHARGE IN AN EFFICIENT AND EFFECTIVE MANNER.
WHAT IS THE EEOC?
Before we can delve into responding to a charge of discrimination, we must first understand where the charge is coming from. Many states have local departments that govern discrimination in the workplace (i.e. South Dakota Department of Labor, Division of Human Rights; Iowa Civil Rights Commission; Nebraska Equal Opportunity Commission), but for the purposes of this article we are going to focus on a federal governing body – The U.S. Equal Employment Opportunity Commission (EEOC). The EEOC is a regulatory body that enforces federal laws that make it illegal to discriminate against a job candidate or an employee. The anti-discrimination laws governed by the EEOC prohibit discrimination in work situations such as hiring, firing, promotions, harassment, training, wages, and benefits.
WHAT IS A CHARGE FROM THE EEOC?
A Charge of Discrimination (Charge) can be brought against an employer because a job applicant, current employee, or former employee[1] (“Charging Party”) feels they have been discriminated against due to their race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information.
The Charging Party can utilize a form available through the EEOC to bring a charge. The form will include the Charging Party’s name and contact information, employer information, date range of discrimination, and any other information available regarding the alleged discrimination. Once the Charge form is filed with the EEOC, the basic information about the individual and the Charge is sent to the employer. All information included in the initial Charge and any subsequent responses are kept confidential and are not disclosed to the public.
RECEIPT OF NOTICE OF CHARGE FROM EEOC
Upon receipt of a Notice of Charge from the EEOC, the first step is – Don’t ignore it! Larger employers seem to have the attitude that one charge from one employee is not important and can be ignored. This is not true, and can lead to serious problems down the road. Best case scenario, and what we will pretend happened for this article, the client will send the Charge to their attorney as soon as they receive it. A typical Charge generally includes a Request for Information (RFI), with specific questions governed by the Charging Party’s allegations and a request for a Position Statement. We will get into the specifics on answering both after preliminary steps are taken as outlined below.
PRELIMINARY NOTICES FROM ATTORNEY
The paralegal assigned to the file should do the following as soon as a copy of the Charge is received: 1) review the Charge fully, make sure the Charge identifies the correct entity, is properly and completely executed by the Charging Party, the statute of limitations has not run, and any deadlines are calendared; 2) draft a Notice of Representation letter to the EEOC clearly stating the attorney who will be representing the client throughout the investigation process and giving all available contact information for that attorney; include a request for additional time if necessary; and, include any requests to narrow the scope of the RFI if it is too broad; 3) draft correspondence to the client that clearly states they are to govern themselves accordingly to prevent retaliation against the Charging Party, keep all information about the Charge confidential, preserve paper and electronic evidence, and they must notify their insurer if the Charge applies to any policy the client may hold.
From here, the investigation can proceed in different directions based on each individual case. We will work with a general outline in which the attorney thinks the Charge may hold some merit and investigation into the matter is warranted.
INTERNAL INVESTIGATION
The EEOC will send a RFI along with the Charge. The questions will revolve around the specific discrimination charges being brought. Contact the client as soon as possible and determine who within the company will be the contact responsible for responding to the Charge. This is typically a member of the Human Resources (HR) department, and if the Charging Party is a “repeat offender” HR will most definitely know about it and be able to give ample information right off the bat. Once the contact is identified, have that person begin working on answering the questions included in the RFI. At this point, further internal investigations may need to be conducted.
One part of an internal investigation can include interviews with potential witnesses. Interviews should be conducted with any relevant witnesses to include managers, supervisors, similarly situated employees, and HR staff. Affidavits and statements can be collected at the same time.
Another part of the internal investigation includes document review. Remember that preservation notice that was sent to the client? Now is when that comes full circle. First, gather not only the Charging Party’s personnel file, but the personnel files of anyone involved and copies of any relevant policies and procedures and the signed acknowledgment forms to those policies (typically found in the Employee Handbook); in particular, any policies or procedures involving making complaints to higher-ups, internal EEOC procedure, anti-discrimination policies, etc. If the client has done prior training focusing on discrimination in the workplace and how the company takes a stance against discrimination, add that in. Next, look for any grievances, internal complaints, and any information on other investigations filed by or against the Charging Party. Finally, gather any emails, voicemails, internet usage records, hand-written notes, annual reviews, and so on that support the facts of the Charge.
Originally published in South Dakota Paralegal Association’s Reporter, Winter 2018 edition.
[1] The EEOC enforces laws that protect job candidates and employees. However, oftentimes former employees file charges of discrimination after they are separated from employment. Thus, in those situations the charging party is technically a former employee, but the charging party’s claims arose from their time as either a job candidate or an employee.