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Wednesday, October 16, 2013

Q&A: Responding to an EEOC Charge Is Like Playing Chess

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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 Commission. 

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 charge process.

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 discriminatory reasons."

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 federal courtroom.

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 litigation.

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 file one?

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 position statement?

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 charge?

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 hold.

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 finds.

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 and taxpayers.

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If you are interested in participating in a Q&A on enforcement actions, legal developments, and news related to the Equal Employment Opportunity Commission or the Office of Federal Contract Compliance Programs or have a suggestion for a Q&A topic, send an email to lbridgeford@bna.com.You can also follow me on Twitter @LCBridgeford.

 

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