Top Ten Tips for How an Arizona Employer Should Handle and Respond to an EEOC (or Arizona Civil Rights Division) Charge of Discrimination
For most large corporations, receiving an EEOC or an Arizona Civil Rights Division (our State’s version of the EEOC) complaint and responding to them may be routine. In contrast, for smaller companies, receiving these complaints is out of the norm and there may not be a routine way to address, investigate and respond to them. But fear not! The tips below will help your company to prepare and respond in the most effective way to support your company’s position should you be faced with such a daunting situation.
- First: Don’t ignore the charge. Notify the affected managers immediately and ask them to assemble and preserve all documents relating to the Charging (complaining) Party, including e-mails and other forms of documentation.
- Second: Contact an employment attorney asap! Smaller companies may be tempted to have their human resource managers handle EEOC complaints. A discrimination charge may be the first step in a chain of complex legal actions by the charging party against the company. As an objective third-party, an employment attorney can give an unbiased assessment of the charge and advice as to what steps to take to resolve the employee complaint in the most cost-effective and efficient way, with minimal disruption to the company’s operations.
- Third: Plan your internal investigation. Schedule times to meet with the persons having knowledge of the allegedly unlawful actions to obtain the real facts as quickly as possible. Strict confidentiality is a must as you undertake this.
- Fourth: Guard against retaliation or the appearance of retaliation if the charging party is still employed with the company. Warn managers that the law prohibits retaliation against an individual who has filed a charge of discrimination. You want to avoid creating a valid claim of retaliation after the charge has been filed, particularly when the underlying charge may otherwise have no merit.
- Fifth: Establish a point of contact with the EEOC or the Arizona Civil Rights Division. Advise the agency in writing of the name of the person who is handling the charge and that all communications should be conducted with that individual. This contact may be your HR professional or your employment attorney. This notification will hopefully ensure that further communication from the agency is promptly received by the appropriate individual. Also, consider whether you will need additional time beyond the deadline indicated in the charge in which to prepare and submit your response.
- Sixth: Check to see whether the charge was timely filed. If the charge is untimely, you may be able to obtain its dismissal on those grounds alone. In general, in Arizona the Charging Party will have 300 days to file a charge after he or she has notice of the alleged discrimination. If the charge has been filed close to 300 days after the alleged discriminatory act, you should check and verify the dates given by Charging Party as they are frequently wrong. And the Employer can often prove that they are wrong (and thus the complaint is untimely) with written documents or emails that show when the Charging Party had notice of the allegedly unlawful act.
- Seventh: Check for comparator information and same hiring decision-maker. A key element of charging party’s case to prove discrimination involves showing other similarly situated employees who engaged in similar conduct, but were treated differently. In investigating and preparing a response to a charge of discrimination, you must find these “comparator’s” to the extent they exist. A key manner of disproving a charge of discrimination is to show that another individual of the opposite sex, different race, or without a disability (as appropriate) engaged in similar conduct as the charging party and was treated similarly. In those instances where “comparators” were treated differently, it is important to show the legitimate, non-discriminatory distinguishing reason why. Similarly, it is helpful where possible to show that the decision-maker who took whatever alleged discriminatory adverse action against charging party is the same person who hired charging party—as evidence that they had no animus against the protected characteristic in the first place.
- Eigth: Decide whether the complaint should be mediated. This may be the fastest and most cost-effective way for the company to resolve the employee complaint. My office can assist your company with preparing for and participating in mediation.
- Ninth: Writing the Company’s Position Statement – How My Office Assists Your Company: Since the EEOC investigator may not be familiar with your company, including a brief background statement about your company will assist them in understanding what your company does on a daily basis and why the charging party’s conduct had to be addressed. As your employment attorney, I will typically include your company’s anti-discrimination and anti-harassment policies with the position paper and will explain your company’s procedures for responding to internal complaints. I will provide the investigators with a copy of your company’s code of conduct (assuming you have one). If the EEOC complaint involves an employee who violated the company’s code of conduct, I will point out what parts of the code of conduct were violated. In the written response, I will relate all of the relevant facts to the EEOC. The charging party’s allegations in the EEOC charge usually consist of a series of checked boxes of what type of discrimination allegedly occurred, with a short description of the alleged discrimination. The company should provide a comprehensive response to describe the circumstances surrounding the employment relationship and the reasons for the adverse employment action (if applicable). Working with your management, my focus is on the legitimate, non-discriminatory business reasons for the company’s actions. I will typically include discipline notices, attendance records, and applicable documentation to prove the events happened as the company says they occurred. On behalf of the company, I usually provide information of other similarly situated employees to demonstrate that the company’s decisions were not motivated by unlawful discrimination.
- Tenth: A good employment lawyer will advise his client (the company) that they should refrain from engaging in “scorched earth” strategies with the EEOC or the Arizona Civil Rights Division. A scorched earth strategy is where an employer insists on destroying all avenues of reasonable communication and negotiation with the EEOC and aggressively “dares” the EEOC to become assertive – such as issuing subpoenas. These strategies usually do not accomplish anything other than antagonizing the EEOC and motivating the EEOC to work harder to conduct an investigation and to assemble evidence against an employer. Instead, the company and their team, should work collaboratively with the investigator to communicate any concerns and attempt to work out compromises.
I hope you found this article useful and informative. My office would be happy to assist your company if you have any other employment questions or issues. And please contact our office for a consultation if you have received an EEOC or Arizona Civil Rights Division Charge of Discrimination.