Responding to an EEOC Charge of Discrimination

A Houston EEOC Attorney Can Help

The Clifford Law Firm can help your company respond to an EEOC Charge of Discrimination. Houston EEOC lawyer Dennis Clifford is a former partner at a large international law firm, where he led the firm’s employment-law department in Houston. He is also Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, an honor held by less than one percent of Texas attorneys.

First Things to Consider:

• Preserving Information: When you receive a Charge of Discrimination, you should take steps to ensure relevant information will not be deleted or destroyed. You can accomplish this by issuing a “Litigation Hold Notice” to the people in your organization who are likely to have relevant information. The Litigation Hold Notice should: 1) explain the company is involved in litigation, 2) list the information to preserve, and 3) explain the consequences of failing to do so—which may include court sanctions and termination of employment. Information to preserve generally includes communications about the employee, disciplinary records, performance records, prior complaints, and personnel files.
• Preventing Retaliation: You should remind your managers they should not retaliate against the Charging Party. Oftentimes, the underlying Charge has no merit (and therefore the company could have avoided liability), but the manager gets upset and retaliates against the employee—thereby creating liability where none existed. Make sure your managers don’t fall into this trap.
• Establishing privilege: As you begin to plan for the investigation, you should consider whether you want the investigator’s notes to be privileged from discovery. If the investigator is an attorney, or the investigation is conducted at the direction of an attorney, then the investigator’s notes may be deemed privileged from discovery in a subsequent lawsuit. On the other hand, if the investigator is not an attorney, and the investigation is not performed at the direction of an attorney, then the investigator’s notes are likely discoverable during subsequent litigation.

Conducting the Investigation:

• Reviewing documents: At the outset, you should gather and review the applicable employment policies, disciplinary notices, and other personnel documents. Pay close attention to the dates. Make sure you are reviewing the polices in effect during the relevant timeframe. Also, make sure the dates on the disciplinary notices are consistent with the general timeline of events. If the documents are problematic, you need to know that before you begin interviewing the witnesses.
• Interviewing personnel: As you are reviewing the relevant documents, you should begin to assemble a list of people to interview. In most cases, you should interview the people mentioned in the Charge, the employee’s supervisor and manager, the decision-makers (including anyone who signed the disciplinary paperwork), and everyone in HR who participated in the process.
• Following up: When you finish the first round of interviews, you should follow-up on the loose ends and newly discovery information. This often requires interviewing new witnesses, re-interviewing witnesses, and tracking down additional documents. Getting a complete picture will allow you to accurately assess liability and exposure (if any)—long before the other side has an opportunity to engage in discovery. Take advantage of this situation.
• Considering mediation: The EEOC offers a free mediation service. As you conclude the investigation, you should assess the economics at play, including the likely exposure and the cost of defense (e.g., is this a summary judgment case, or is it one that you will likely have to try to a jury?). Based on these and other strategic factors, you may wish to pursue mediation before you submit a written position statement to the EEOC.

Drafting the Position Statement:

• Leading with the EEO Policy: The EEOC investigator needs to know your company treats EEO matters seriously. At the beginning of your position statement, you should quote your EEO Policy and emphasize the sections addressing the issues raised in the Charge. You should also explain how your company makes employees aware of its EEO Policy.
• Addressing the timeliness: Charges of Discrimination generally must be filed within 180 days of the adverse employment action. However, if the Charge is dual-filed with the EEOC and the Texas Workforce Commission, then the employee has up to 300 days from the date of the adverse employment action to file the Charge. The EEOC will automatically dismiss untimely Charges. But oftentimes the employee will omit key dates—thereby concealing the fact that the Charge is untimely. If that happens in your case, you should submit evidence to establish that the Charge is time-barred.
• Addressing the comparators: The Charging Party may allege other employees committed the same offense as the Charging Party but were treated more favorably than the Charging Party. If possible, you should distinguish these situations. Courts generally hold that comparator evidence is insufficient if: 1) the employees have different disciplinary records; 2) the alleged offenses are different; 3) the decision-makers are different; and/or 4) the governing policies are different. You should also identify employees who committed the same offense as the Charging Party and who were treated the same way. This will help demonstrate that the Charging Party’s protected status (race, age, gender, etc.) was not a factor in the disciplinary decision.
• Using exhibits: Quote the key exhibits in the position statement. For example, instead of merely attaching the attendance policy, you should quote the key language, “Employees will be terminated if they have three unexcused absences within their first 90 days of employment.” This approach is much more persuasive—and it makes the EEOC investigator’s job much easier.

Finalizing the Position Statement:

• Ensuring accuracy: Your position statement may be used as evidence in a lawsuit. If your position statement is inconsistent with other evidence at trial, the jury will likely question your credibility. Therefore, you must ensure the position statement is 100 percent accurate before you submit it.
• Scrubbing the metadata: The EEOC requires employers to submit their position statements and exhibits electronically, through a password-protected website portal. As a best practice, you should convert any Word files to PDF format before uploading the files on the portal. Converting Word files to PDF format will mask certain metadata, including prior redlines, comments, and other information you may not want to share with the EEOC.