The Labor & Employment Blog is a forum for practitioners and Bloomberg BNA editors to share ideas, raise issues, and network with colleagues.
Wednesday, October 16, 2013
by Lydell C. Bridgeford
Bloomberg BNA spoke with Michael
Petkovich, a partner, and Amanda
Vaccaro, an associate, in Jackson Lewis LLP's
Washington, D.C., area office after they presented a session at a
firm-sponsored workplace law symposium on handling a
charge issued by the Equal Employment Opportunity
After an employer has gathered all the facts pertaining to the
charging party's allegation, it must strategically analyze which
facts it plans to turn over during the charge investigation,
Petkovich told participants during the Oct. 3 session. "It's like
chess," he added. The employer has to focus on every step of the
A potential plaintiff must file an EEOC
charge before moving forward with a case under a law
enforced by the commission. Whether the EEOC issues a "reasonable
cause" or "no reasonable cause" finding, the charging party can
proceed with litigation in federal court.
"Think about what the charge is claiming and tailor your
position statement to the charge," Vaccaro said in her
presentation. "[I]t is not about whether the person was a bad
employee, but whether or not you made the decision for
Bloomberg BNA: Why should an employer be
mindful about disclosing certain facts in a position statement
responding to a notice of charge of discrimination?
Petkovich: I think it is helpful to give the
facts to the EEOC investigator, so that the person can thoroughly
investigate the charge. I support that. It is not the EEOC I
am concerned about, but the fact that what the employer turns over
to the EEOC is not confidential.
I am concerned about an employer sharing facts that are not
necessarily critical to the charge. That is sharing facts that may
teach a potential plaintiff how to beat your defense in a
If a charging party becomes a plaintiff and files a lawsuit in
federal court, then that person can submit a Freedom of
Information Act letter to the commission requesting all
the documents and information that the employer provided to the
commission. That is what I am mostly concerned about.
Facts can be really good, but they also can be used against an
employer. We are much more judicious about sharing facts related to
a charge until we know how they can be used in future
Bloomberg BNA: During the presentation,
you said an employer is not legally bound to file a position
statement in response to an EEOC charge. Why should an employer
Petkovich: We recommend that an employer
file a position statement. It is an easy and efficient way to help
the EEOC investigator to understand the facts--that is, the ones
we want to share with the plaintiff down the road. If you don't
file a position statement, then it may cause the EEOC to issue a
subpoena. Frankly, it may be more expensive for a company to
respond to a subpoena than the charge.
Bloomberg BNA: Can you think of a scenario in
which it might not be in the employer's best interest to file a
Petkovich: The most likely situation is
when you know that the charging party has obtained a lawyer and the
individual is simply waiting for the EEOC to issue a right-to-sue
letter. You know that the charging party's attorney is going to
take the case forward.
For instance, before the charge was filed, the attorney might
have called our firm and we had a long dialogue about the charge's
allegations. But afterwards, the lawyer was not swayed by the facts
that we shared with him or her.
In that situation, we may go to the EEOC and say we have talked
to opposing counsel for the charging party and we know that they
are going to file a complaint in federal court. They are just
waiting for a right-to-sue letter. We share that information with
the EEOC. We don't stonewall the commission. We respect the EEOC
during the charge process.
Bloomberg BNA: What practical advice would
you offer an employer about issuing a litigation hold informing
employees not to delete or destroy documents related to an EEOC
Vaccaro: The first thing that an employer
should do is take a broad look at who might potentially have
information about the allegations cited in the charge.
This means thinking not only about the people who made the
termination decisions--if the charging party is a former
employee--but also about anybody who has evaluated the charging
party's work performance. You also want to include individuals who
are named in the charge.
The employers also should work with their IT departments to
figure out where are all of the documents and other information
might be stored that would fall under the litigation hold. I am not
just talking about e-mails, but also data on shared and flash
drives and company-issued smartphones.
Often, other people in the
company don't have a good sense of the company's infrastructure on
storing data and documents, so it is important to work closely with
the IT department to understand that infrastructure and make sure
you are capturing everything that applies to the litigation
Petkovich: In addition, lower-level
supervisors will sometimes keep a file of notes about subordinates
that do not go into a personnel file. An employer should check with
those supervisors to see if they have such files.
Bloomberg BNA: Any final thoughts?
Petkovich: The fact is that 99,412 charges
were filed with the EEOC in fiscal year 2012 and the commission found cause in only 3.8 percent of those charges. And yet, charging
parties can file a complaint in court no matter what the EEOC
Unlike the EEOC, Congress has given the National Labor Relations
Board statutory authority to be a gatekeeper. If an employee files
a charge with the NLRB and the regional director and his or her staff
investigates the charge and finds there is no probable cause, then
the employee can appeal the denial of the charge to the appellate
branch of the NLRB.
If the appellate branch and the regional director find that
there is no merit to the charge, then the employee cannot sue and
proceed to trial. If the EEOC had a similar system, charging
parties would not be allowed to go forward.
I would recommend that the EEOC be given more statutory
authority --even if it costs more money--to actually be a gatekeeper,
because it is so expensive for companies to defend EEOC charges in
a federal court. Employment law cases present 15 percent of U.S.
courts' dockets. That is an enormous expense for the courts
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