HELP…We Just Recieved an EEOC Complaint! What Next?
The Dos and Don’ts Every Employer Should Know
Your initial reaction to an EEOC charge can have a long-lasting impact on your organization—whether it’s good or bad depends on what you do.
Employers receive an EEOC charge, because it’s a requirement for the current/former employee (“Complainant”) to file a lawsuit against you. To protect your company, you must treat the charge the same way you would treat a lawsuit. Here are some important immediate steps to take to strengthen your position:
Alert your Employment Practices Liability Insurance (EPLI) carrier that you have a claim. Yes, your insurance may go up if you do so, but if you don’t alert them promptly, they may deny coverage for the claim, leaving you to foot the bill on sizeable legal fees, and possibly a settlement or a damages award. If you don’t have EPLI but you have more than 15 employees (or less if you are subject to a state or local mandate that mirrors the federal employee protection laws with a lower employee number threshold), speak to your insurance broker immediately to add this insurance. While this won’t help on a claim that arose prior to coverage, it will be there for next time.
If the charge concerns a matter for which you previously sought legal counsel, send the charge to your lawyer. If your lawyer is not a labor lawyer, ask him/her for their records on anything related to the matter because your EPLI carrier will assign you counsel, and it is cheaper for you to have all the information they need available quickly.
Notify your IT personnel to put a deletion hold on any electronically stored information pertaining to the matter including all the complainant’s company documents and emails. You don’t know what your defense counsel may need to effectively defend you so it’s important that you provide them with a comprehensive written history pertaining to any adverse action you took against the complainant.
Notify your HR department to scan the employee’s personnel file and collect any other documents relevant to the content of the EEOC Charge so you can provide it to defense counsel—this includes any supervision documents or relevant emails between the supervisor and the Complainant. Don’t trickle information to your defense counsel or withhold information because you do not believe it’s relevant. It is usually cheaper to provide all the information at the outset rather than sending it bit-by-bit, as this will usually result in costly rework.
If the Complainant is still employed at your organization, and the content of the charge concerns a hostile work environment by the Complainant’s supervisor, speak to counsel about whether you should immediately reassign the supervisor or the Complainant.
Ensure that the Complainant’s supervisor and any other party with the power to fire or take other adverse action against the Complainant is reminded in writing of the prohibitions against retaliation, so they do not make a bad situation worse for you. If the Complainant has been separated from employment prior to your receipt of the Charge, this prohibition still applies and supervisors and HR cannot give bad references, refuse to verify prior employment, or spread negative information about the employee on industry social media platforms.
CHRO provides growing businesses with experienced fractional HR personnel to assist in responding to an EEOC charge and provide other services to strengthen employment and management practices. Visit our services page for more information.
Here's what you Shouldn’t do:
Avoid these often instinctive responses to ensure you don’t weaken your position.
Don’t ignore it. If the EEOC only receives the Complainant’s side of the story, and that story meets the standard for unlawful discrimination or retaliation, they will find in the Complainant’s favor. This could result in the EEOC initiating an action against you, or a larger settlement demand during subsequent litigation.
Don’t have your HR person draft the position paper for the EEOC. Chances are your HR person lacks the skill to mount an effective defense for your company and even if they are equipped to do so, they are rarely objective enough to write an effective position paper. You must let counsel do this or it can jeopardize your position in any subsequent litigation on the matter.
Don’t bad mouth the Complainant. Don’t discuss the allegations or the Complainant with anyone other than those involved or identified in the charge (with the exception of your Board or executive management). Avoid discussing it with employees who were not involved in the matter and ensure that those who are aware of the Charge keep the allegations confidential.
Don’t delete anything from your system in anticipation of litigation. This could have serious consequences for you in the litigation process, and may impede your defense counsel from mounting an effective defense for you. Trust me, defense counsel would rather deal with bad facts than a dishonest or evasive client.
Don’t hide information from your defense counsel because you think it makes you look bad. The last thing you want is your defense counsel blindsided by the other side with information you should have provided in advance. This will hurt you a lot more than being open and forthcoming about weaknesses in your case.
Don’t reactively fire or discipline named wrongdoers in the Charge, without discussing it with your defense counsel first. Even if you are advised to separate them from employment, this must happen in a way that you can still use them or documents related to their separation, in your defense.
Don’t instinctively fire or discipline your HR team over the Charge. There is big knowledge gap between HR personnel and defense counsel. In many cases, highly experienced and competent HR personnel will run afoul of the labor laws. Your HR leader should know how to identify a high risk employee situation, and when to escalate an employee problem, they don’t necessarily need to know how to effectively navigate through it.
If your HR team needs support in labor law compliance, contact CHRO to see how we can develop their HR skills and guide them through difficult employee matters.
CHRO’s Recommendation
Responding to an EEOC Charge requires a balancing of long-term costs and risks.
Upon providing all the information to defense counsel, ask them for their opinion on whether you should attempt to settle this at the EEOC stage or if they believe they can win a summary judgment motion based on the evidence you have provided them—if needed allow counsel to conduct an internal investigation during which they speak to all potential witnesses to assess their credibility and recollection. While there are no guarantees in litigation and a lot depends on which judge you are assigned, defense counsel usually knows when summary judgment will be unlikely. If this is the case, then try to settle at the EEOC phase, even if you hate to do so. Settlement at this point will be the least expensive option for you, plus you won’t have the public record of an employee lawsuit which was ultimately settled—this can have a floodgate effect for new claims, as anyone can pull prior lawsuits.
Obviously, there are times when you want to defend yourself, particularly when the allegations in the charge are entirely groundless, the Complainant has strong relationships with your current employees, or the Complainant’s conduct was so egregious, settlement will have a harmful impact on employee morale. However, you should have as much information available as possible at this early stage of litigation so you can make the best decision for your company.
If you need guidance on high risk employee matters, or organizational development support to reduce employee problems, contact us for a confidential consultation to discover how we can hellp you. If you want a free HR assessment, complete our company diagnostic.
Every Cloud has a Silver Lining
Use the EEOC charge as a tool to improve your workplace
The charge almost always highlights a policy/procedure, training, talent acquisition or workforce culture problem. These are all fixable, and taking effective internal remedial action almost always results in higher employee satisfaction, increased retention, and better workforce cohesion. When you get the charge, read it carefully and make a list of the actual allegations identified in the charge—not what you think happened, but what the employee claims happened. Then work with your HR team and your defense counsel to implement solutions so that another employee will not perceive a similar situation in the same way the Complainant did. For example, if the Complainant alleges “I was terminated for no reason shortly after I requested an accommodation for my disability” one remedial action would be to ensure that every separated employee who is terminated for cause receives a letter that clearly identifies all the reasons for their termination. A second remedial action might be a review of all job descriptions to ensure that they contain accurate physical requirements. A third remedial action may be to work with an external ADA administrator to support you during the interactive process.
Unfortunately, you cannot prevent employee lawsuits altogether, but you can take steps to reduce the risk of future lawsuits. In our next HR update, we will discuss the reasons why employees end up suing their current/former employers and what employers can do to safeguard themselves.
Do you know what weaknesses your company has with regard to employee risk? If not, complete our company diagnostic for a free HR Assessment.
