The EEOC and state and local agencies have been filing more administrative charges in recent years and that trend is likely to continue.
Because administrative charges can be precursors to discrimination lawsuits, it’s critical for you to handle them properly. These 10 tips will help you prepare to respond:
1. Tell the whole story
An EEOC charge often contains just one or two paragraphs briefly outlining vague allegations of discrimination. But even a brief charge demands a comprehensive response, detailing the circumstances surrounding the employment relationship and the reasons for adverse employment actions. Give the agency all the facts. Demonstrate that there were legitimate business reasons for your actions.
2. Use documentation
To discredit the allegations, consider including documents supporting your version of events in your response. Attendance records, sales reports and email messages can all help prove that events happened as you say they did.
3. Verify the response’s accuracy
Attorneys love catching an employer in a lie. Since the information you submit could be used in later legal proceedings, make sure everyone involved reviews the response and verifies the accuracy of every statement.
4. Highlight consistent past decisions
Demonstrate that a decision was not motivated by unlawful discrimination by pointing to cases when you took the same action against similarly situated employees who were not members of the charging party’s protected class.
5. Remember, the agency doesn’t know your business
In telling your version of the events, share details about your business that will help the agency understand why your action was justified. Think about why the charging party’s performance concerned you. Would that be readily apparent to an outsider?
6. Maintain confidentiality
Information about the charge should be on a need-to-know basis, especially if the charging party is still employed.
7. Be prompt and cooperative
Anti-bias agencies are less inclined to provide extensions than they once were. Failure to respond to a charge in a timely way can result in an adverse determination.
8. Work with your attorney
Because a discrimination charge can be the first step in a chain of legal actions, you must protect your company’s interests. Consider asking your attorney to investigate and prepare—or at least review—the response.
9. Contact your insurer
Insurance policies require prompt notice of claims. Many employment-practices liability policies define claims to include discrimination charges. Failing to apprise the insurer of a charge could result in denial of coverage, not only for the charge but all subsequent legal claims.
10. Preserve all documents
Courts are increasingly imposing harsh sanctions on employers that fail to adequately preserve relevant evidence. When you receive an administrative charge, collect and preserve all documents that could be relevant. You may also want to suspend any routine practices that might result in the destruction of relevant records, particularly electronic information like emails, voice mails and Internet usage records.
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