My Company’s Employee Filed, With The U.S. Equal Employment Opportunity Commission, A Charge Of Discrimination Against My Company In Manhattan. What Should My Company Do Now?

How Did My Company’s Employees File Charges, Against My Company, With The EEOC In Manhattan?

Under federal law, an individual, such as an employee of your company, must file a charge of discrimination with the U.S. Equal Employment Opportunity Commission (“the EEOC” or “the agency”) within 300 days of the discriminatory act. The Manhattan District Office of the EEOC is located at:

33 Whitehall Street, 5th Floor

Manhattan, Manhattan 10004

Telephone: (212) 336-3620

The filing requirement is intended to give, to the EEOC, notice of a claim so it may investigate and possibly settle or prosecute the charge.

How Does the EEOC Process My Business’s Employee’s Charges Of Discrimination In Manhattan?

The EEOC assigns an investigator toyour company’s employee’s charge. The investigator is responsible for making a recommendation to the local office as to whether there are grounds to believe that your company, the employer, violated the law.

In response to a large backlog of cases, the EEOC now utilizes a triage system.  Through this “Enforcement Policy,” begun in 1995,the EEOC evaluates all types of discrimination cases when they are filed. How the EEOCaddresses the case depend on the agency’s initial view of the case’s possible merits.

Category A cases are charges where further investigations will likely result in a finding of “probable cause” that discrimination took place. Certain other charges are also deemed priorities and come within this group. These cases enjoy the highest priority.

Category B cases are charges requiring additional information (because they initially seem to have some merit but have need of further evidence to determine whether a continued investigation is likely to result in a finding of probable cause) or cases in which a determination on the merits cannot be reached at the time the charge is filed. These charges receive second priority.

Category C cases are charges “suitable for dismissal.” These charges are those for which the local EEOC office possesses enough information to decide that it is unlikely that additional investigation will result in a finding of probable cause. Although the EEOC is required to serve such charges on the employer, the Enforcement Policy directs local offices not to request position statements from employers in these cases. As a result, charges in this category will be quickly dismissed.

In the cases it elects to investigate, the EEOC seeks a position statement from the employer (your company), informs the employee of the substance of your company’s position statement, and affords the employee an opportunity to respond in writing. In addition, some investigators will provide the employee’s lawyer with the position statement of your company, the employer. Although the EEOC has the authority to hold a fact-finding conference during an investigation, most decisions are made without such a conference.

Once the investigation is complete, your business and the worker may each obtain the file from the district office. Under Title VII of the federal Civil Rights Act of 1964, as amended (“Title VII”) and the federal Americans With Disabilities Act (the “ADA”), the EEOC may expendas many as 180 days investigating the charge. When the investigation is completed, the EEOC will issue a “right to sue letter,” which authorizes the employee to sue the employer (your business) in court under the involved federal statute.

The vast majority of charges are dismissed by the EEOC without a finding of “probable cause,” resulting in the issuance of a right to sue letter.

The EEOC frequently seeks to conciliate cases through voluntary mediation.  The agency’s Manhattan office utilizes two in-house mediators as well as independent, volunteer mediators.  The mediations occur before the employer (your company) has provided, to the EEOC, the employer’s position statement.

The employee must file, in court, any lawsuit against your company within 90 days after receiving the EEOC’s Notice of Right to Sue.

What Can My Business Expect AfterMy Business’s Worker Files, With the EEOC, A Charge Of Discrimination Against My Business In Manhattan?

When a charge of discrimination is filed against your business, the EEOC will notify your business within ten days. The notification will provide a URL for the respondent (your company) to log into the EEOC’s respondent portal to access the charge and to receive messages about the charge investigation.

Mediation and settlement are voluntary resolutions.

During the investigation, the EEOC may ask the employer(that is, your company) to respond to a Request For Information (an “RFI”). The RFI may ask your business to submit personnel policies, the charging employee’s personnel files, the personnel files of other individuals, and additional relevant information. So, too, the EEOC may ask your company to permit an on-site visit, to provide contact information for other employees, or to make other employees available to be interviewed by the EEOC.

The EEOC encourages your company, the employer, to present any facts that your company believes showseither (i) that the charging employee’s allegations are incorrect or (ii) that, even if the charging worker’s  allegations are true, they do not amount to a violation of the law.

As of 2015, the average time it tookfor the EEOC to investigate and resolve a charge of discrimination was about ten months.

The EEOC is entitled to all information relevant to the allegations contained in your business’s worker’s charge. The EEOC possesses the authority to subpoena such information.  Your company, the employer,  must comply with such subpoenas.

If the EEOC determines that there is reasonable cause to believe discrimination has taken place, the EEOC will issue, to the charging worker and to your company, a Letter of Determination stating that there is reason to believe that discrimination occurred and inviting the charging employee and your company to join the agency in seeking to settle the charge through an informal process called conciliation.

When conciliation does not succeed in resolving the employee’s charge, the EEOC possesses the authority to seek to remedy violations of federal anti-discrimination statutes by filing and prosecuting, in federal court, a lawsuit against the employer (your business).

If – as is usually the case – the EEOC decides not to litigate, the EEOC will issue, to the charging employee, a Notice of Right to Sue.  As stated above, within 90 days after the charging worker receives the EEOC’s Notice of Right to Sue, the charging worker must file, in court, any lawsuit against your business.

In Responding To My Company’s Employee’s EEOC Charge Of Discrimination, What Strategies Should My Company In Manhattan Utilize?

Let’s talk about strategies for responding to an EEOC charge of discrimination or retaliation brought by an employee of your business in Manhattan.

A successful defense begins with your company having good policies and practices well before a charge is received.

Once an employee of your company has filed, with the EEOC, a charge of discrimination against your company, your company should conduct an internal investigation of that charge.

It is often helpful for your company, the employer, to meet with the decision-maker (for example, the person who fired the claimant employee) to get the decision-maker’s side of the story.

After your company confers with the decision-maker, your company should identify and review key documents, conduct witness interviews, and examine helpful (or potentially harmful) comparative information.

The position statement is your company’s opportunity to tell, to the EEOC, your company’s side of the story. Consider including, in your business’s position statement, an introduction, a statement of facts, an argument, and a conclusion.

The employer’s (that is, your business’s) position statement’s argument should address each of the charging worker’s key allegations.

Further, in your company’s position statement, it is useful and persuasive to highlight inconsistencies, misrepresentations, and intentional omissions in what the charging employee has told the EEOC.

Consider including, in your business’s position statement, additional evidence that negates an inference of wrongdoing. For example, set forth any favorable statistics showing that your company treated workers outside the protected class the same as, or similarly to, the complaining worker.

Give thought to submitting, with your company’s position statement, exhibits and supporting documentation.

Seriously consider using the EEOC as a mediation program.  The EEOC’s mediation program is free. The mediators generally are fair to employers and tend to be sophisticated.

Further, the settlement amounts in mediation are often quite reasonable, and are frequently lower than what your company, the employer, might be required to pay to settle the case at a later stage.

An employer should not conceal witnesses or evidence, falsify documents, threaten or intimidate adverse witnesses, or lie to the investigator.

If your company receives an EEOC charge filed by one of your company’s workers, and your company realizes that it screwed up, your company should immediately begin undertaking to fix things. If your business acts quickly enough, your business might be able to reinstate an employee whom your business fired wrongfully.

Keep in mind that the EEOC’s investigators are federal investigators who carry badges, and that they can lawfully interview your company’s employees without your company’s knowledge or consent.

Given that an EEOC charge is often the first step in a dispute that can extend into state or federal court, your company, the employer, should strongly consider retaining an experienced borough of Manhattan Employment Lawyer.

If your business needs assistance or guidance on a labor or employment law issue and your business is located in the borough of Manhattan area, call Attorney David S. Rich at (347) 603-1143.