The pre-cursor to many employment related lawsuits is the filing of a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Navigating the EEOC can be a confusing and daunting process. Here are five tips regarding what to when you receive a charge:
1. Don’t Ignore It!
Unlike a lawsuit, you will not be “formally served” with a charge. It will arrive via certified mail, in a regular envelope. It looks innocent enough. It is very important to read all of the materials provided by the EEOC. The actual “charge” will provide the details of the employee’s claims. The EEOC, however, provides additional information that is also important. You will have an opportunity to respond to the charge by filing a Statement of Position. The deadline for the Statement of Position will be contained in the materials. Many times, the EEOC will ask that you provide specific information in the Statement of Position. Those requests will be in the materials as well. Ignoring the charge will not make it go away. Failure to respond may result in prejudice to the employer, so make sure to take it seriously!
2. Don’t Retaliate!
If the employee who filed the charge still works for the employer, the impulse may be to pull the employee into the office and chastise him or her, or simply ask, “why did you do this?!” Don’t! Filing a charge of discrimination is considered “protected activity” which means you can’t take any adverse action against the employee for filing the charge. Address the issues in the charge with the EEOC directly, not the employee who filed the charge.
3. Preserve Evidence.
It’s likely there will be emails and other materials that will assist in defending the charge. Make sure to preserve all evidence. This includes documents, emails, social media postings and anything else that may provide information on the allegations in the charge. This will also assist in what will likely be a lawsuit to follow.
4. Make a Witness List.
Defending the charge will likely require interviewing employees. Make an initial list of employees who may have information on the allegations. Make sure to identify which employees are and are not part of management. Also, make sure to identify which employees are and are not currently with the employer. If they’re not currently with the employer, make sure that your last known contact information is up to date.
5. Contact Labor and Employment Counsel.
The filing of a charge is a prerequisite to filing a lawsuit. What happens at the charge stage will have implications should a lawsuit follow. Therefore, it is important to contact labor and employment counsel to make sure that you’re placed in the best position possible to defend a lawsuit.
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