A More Effective Approach for Employers and Addressing Charges EEOC: The Inside Track A More Effective Approach for Employers and Addressing Charges

EEOC Investigations Investigate charges of discrimination & determine whether discrimination has occurred No presumption of guilt of employer Quality of investigation can be impacted by response of employer to a charge

You Know The Employer Has A Problem… When contacted by the EEOC, the human resources manager/director responds with “What’s the EEOC?”… The employer does not know what a position statement is… You submit a position statement that says “The company did not discriminate against the charging party. It was his co-workers.” Your position statement says “The charging party complained about discrimination, so we terminated her employment…”

ADR: What to do… If you submit a position statement, please indicate in your correspondence whether you accept or decline mediation. Respond promptly to our inquiries. You can fill out the mediation acceptance/declination form, OR call and let us know your decision. Make sure we have the proper contact information, ask that it also be entered into the system too.

Mediation Session: BYOB, BYOS If you require your own separate settlement agreement and release, please bring it with you to the mediation. Plan on at least 3-4 hours for the session. Be patient.

The Plan for Your Position Statement: Describe who the employer is and what they do. Provide background information (i.e., description of the employee’s job duties, the department where the employee worked, and other pertinent information to the employee’s job). Explanation of company’s equal opportunity policies and procedures. Factual circumstances regarding the charging party’s allegations. The complete story (i.e. who was selected and why, the name of the decision maker, etc.). Explain why what happened was not unlawful discrimination or retaliation. Provide relevant supporting documentation (i.e. exhibits that support the explanations and conclusions)

Position Statement = The Paul Harvey Effect Respond to ALL of the allegations in the charge(s). Cite how similar offenses were treated by the company. If it’s a disability issue, explain what you did and didn’t do for reasonable accommodation. If there was an investigation, explain what was done in the investigation: who was interviewed, what actions taken, etc. If charge accuses another employee of making statements or taking actions, submit a signed statement from that person explaining what happened. Instead of quoting the entire policy in your position statement, send a copy of the relevant portions of the policy (i.e. attach highlighted portions as an appendix to your position statement). Retaliation - it IS illegal.

Investigation: The Do’s and Don’ts DO be prompt in responding to requests. DO provide documents and other evidence that support, justify, and/or explain your position. DO make witnesses available for interview upon request. DO be patient, as it takes time to investigate these cases. DON’T withhold clearly relevant documents (EEOC prefers employers provide all documents, even if damaging, with an explanation). DON’T ignore requests for information or witness interviews (EEOC prefers to work cooperatively, but it will exercise its subpoena powers if necessary).

FINAL THOUGHTS: Communication: be honest and straightforward, respond promptly, provide thorough details. Always tell a good story: provide all the details from the beginning to the end of the story, along with explanations and exhibits that fill in the gaps and provide the “Paul Harvey”. When in doubt, ask.

Jeffrey M. Ireland, J.D. ADR Mediator Telephone: (704) 954-6461 Facsimile: (704) 954-6411 jeffrey.ireland@eeoc.gov