When your organization receives its first discrimination charge from the Equal Employment Opportunity Commission (EEOC) or your applicable state’s Department of Labor and Human Rights, you may wonder, “What does this mean?” or “What do we do now?”
A charge is a signed statement from an applicant, former employee, or even current employee asserting that an organization engaged in employment discrimination against the individual (often called “the charging party”). The charge isn’t a lawsuit, but it is an administrative notice that the EEOC or your state agency will investigate a potential violation of federal and/or state antidiscrimination law.
You should not—under any circumstances—ignore a charge when you receive one. Ignoring a charge won’t make it simply go away. The EEOC will continue to investigate and could potentially issue an adverse ruling, even in the absence of any response from you.
A discrimination charge also is not a matter to be taken lightly, even if the allegations are entirely meritless. It could possibly lead to a lawsuit or further litigation after the administrative process is complete, so it’s important to understand how to respond to a charge effectively, in the hopes that it never proceeds to a lawsuit. Read on to find out more.
Preserve Any and All Relevant Documents
Immediately after receiving a charge, you should identify which individuals within the company may have relevant information. They will likely include those referenced within the charge, such as coworkers, supervisors, and employees who witnessed events, but others not referenced within the charge may have relevant information as well, such as HR professionals.
After identifying the key players, you should draft and disseminate a “document hold” notice. The notice essentially alerts the individuals there’s a pending charge, they may have relevant information, and they must retain (and not destroy) any related documents until advised otherwise.
At the same time, you should review your document retention policies and procedures. If a particular procedure could potentially delete or destroy relevant information, it should be suspended to retain the documents until the charge has been resolved.
To Respond or to Mediate? That Is the Question
When you first receive a charge, you are essentially given two options on how to proceed. You can provide a written response to the factual allegations within the charge in a designated time frame, or you can engage in the mediation process with the charging agency to resolve the charge without submitting a written response or undergoing a formal investigation.
So, one of the first questions to consider is whether you should respond to the charge or pursue mediation. Many times, employers don’t want to engage in mediation because they feel the charge is without merit, and they don’t want to pay the charging party any monetary relief. Although mediation doesn’t have to include any monetary settlement, in reality, it most often does.
The good news, should you decide to respond to the charge, is that the EEOC has frequently sided with employers after a full investigation. In fact, in 2018, the EEOC found no reasonable cause for more than 70% of charges, meaning it found in favor of the employer and dismissed the charge in the vast majority of cases.
There may be other circumstances, however, under which you may want to consider mediation. At times, allegations within a discrimination charge aren’t entirely favorable to the employer, and it (or more likely, its legal representative) may recognize the risks that the EEOC may not find in its favor after proceeding with a full investigation […]
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Source: HR Daily Advisor