Oh No! … It’s an EEOC Charge! How to Respond Effectively. HR Women’s Breakfast Briefing June 11, 2008 Washington, DC Kara M. Maciel, Esq.

Trend In Rise of EEOC Claims In 2007 – 82,792 EEO Charges filed (almost 10% increase from 2006) 37% Race 30.1% Gender 23.2% Age 21.4% Disability 3.5% Religion 32.3% Claims Included Retaliation Source: EEOC

Trend Over Last 10 Years Race, Sex claims have remained at or around same levels over the last 10 years Growth has occurred in the number of Religion, Age, and National Origin claims Retaliation has seen the largest increase in claims Source: EEOC

Hot Issues for 2008 CARE GIVER RESPONSIBILITY –New Guidelines issued by EEOC on Care Giver Responsibility Discrimination in 2007 –Increased rise in pregnancy / maternity leave discrimination

Care Giver Responsibility What is Care Giver Responsibility Discrimination? –Plaintiff alleges that the employer discriminated against him/her based on the employee’s care giving responsibilities –Currently no Federal law addresses Care Giver Responsibilities –Suits mainly brought under Title VII/Gender Discrimination, Pregnancy Discrimination Act, ADA, or FMLA –48 of 50 states and District of Columbia have seen such cases litigated in their courts

Statistics and Figures 92% of Care Giver Responsibility cases are filed by women 62% of these plaintiffs are blue collar non-professional workers Care Giver Responsibility plaintiffs obtain a judgment 50% of the time, compared with a 20% rate of success for discrimination cases overall 54% of such cases result in judgments of $100,000 or more Currently about 100 Care Giver Responsibility cases are pending in the U.S. Source:

EEOC Handling EEOC Cases

EEOC — Federal Laws Covered Title VII (race, color, national origin, gender and religion) –DCHRA (family responsibility, marital status, political affiliation, etc.) ADA (disability) ADEA (age) Individual Claims vs. Class Claims Disparate Treatment vs. Disparate Impact

EEOC — Charge A charge can be filed by any person or organization claiming to be aggrieved Any one person on behalf of a class A member of the EEOC

Statutes of Limitations EEOC Charge — 180 days or 300 days if claims are dual filed with DC Office of Human Rights; Court Complaint — 90 days after right to sue letter issued by EEOC DCHRA – Employee can bypass administrative procedures and pursue claims directly in D.C. Superior court

EEOC — Responding to Charge Only Conducts Investigations (no hearings or trials) Do not ignore the charge –Notify your EPLI carrier –Notify key players to preserve documents Is the charge timely? –Clock begins to run when charging party is given notice of the alleged discriminatory act Assess whether it is wise to pursue settlement or mediation Plan internal investigation and ensure no retaliatory action is taken Prepare position statement

General Mediation Program Assess whether to participate in Mediation –Cost effective as no position statement required –Does the charge contain allegations that are a “hot topic” for the EEOC? –Does disclosure of witnesses or company documents weigh in favor of early resolution? Neutral Mediator not Investigator Mediates –Sometimes its best to resolve the case before it gets in front of the investigator Confidential Not an Admission of Wrongdoing Universal Agreements to Mediate –New mechanism to mediate all charges with EEOC

Employer Internal Investigation Immediately begin your internal investigation –Review Documents –Interview Witnesses Ensure no retaliation –Draft Position Statement

Review Documents Personnel files (for the charging party, supervisors, decision- makers, and similarly-situated employees); Personnel policies and procedures (and signed acknowledgments of receipts of the charging party); Grievance files, written disciplinary warnings, and internal complaints;

Review Documents (Cont’d) Supervisor’s Files; Medical Files (if applicable); Statistical Analyses; and Other documentation relevant to the case.

Interview Witnesses Interview witnesses with relevant information: decision-makers, management, non-management, and HR personnel Maintain confidentiality of investigation

Position Statement (Purpose) Gives context to the Charging Party’s allegations Tells a story – make it easy to read and follow Gives explanation for employer’s actions (with supporting documentation) **Free discovery for employee’s lawyer**

The Position Statement (Statement of Facts) Give context –Department Background –Job Duties Quote Applicable Policies & Procedures Tell a Story –Introduce key players/decision makers –Discuss employee’s problems or issues –Explain reasons for disciplinary action –Explain why action was lawful

The Position Statement (Cont’d) Your Review Review with decision-makers and key witnesses Reminder — EEOC will likely share information with employee Admissible evidence at trial –Changing positions later will hurt you at trial

EEOC — Request for Documents EEOC’s subpoena power Be familiar with all documents Determine applicable documents to submit –Perhaps limit information to employees working for the same supervisor –Depends on scope of charge (individual vs. class) Show and Explain Bad Documents

On-Site Investigations EEOC needs permission or subpoena –Counsel should participate in all management interviews Prepare witnesses as if for deposition Conduct a pre-visit of your own (confirm posted notices, etc.) Attend on-site investigation Interact with the investigator

EEOC Determinations No Reasonable Cause –Notice of Right to Sue Reasonable Cause –EEOC May Bring Suit in its Name

Reasonable Cause Challenge determination by requesting EEOC Reconsideration Conciliation – agree or not agree to conciliate? –EEOC is usually looking for all available remedies

Oh No! … It’s an EEOC Charge! How to Respond Effectively. HR Women’s Breakfast Briefing June 11, 2008 Washington, DC Kara M. Maciel, Esq.