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EEOC is Deep in the ‘Red Zone’ … It’s Time to Play Defense

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in HR Soapbox

If you're reading about more employers getting hit with discrimination lawsuits in the past few weeks, it's not a random trend. We are deep into what's called the "Red Zone," the last quarter of the fiscal year (ending Sept. 30) in which the Equal Employment Opportunity Commission traditionally files more lawsuits than any other period.

Last year, the EEOC hit employers with 175 of its 261 lawsuits (67%) during the Red Zone period. Also, a record number of employees filed discrimination complaits with the EEOC last year, and that trend is expected ot continue.

The Seyfarth Shaw law firm says some of the signals that the EEOC is clearly in its "hunting season" are accelerated EEOC activity to resolve admin charges across the country and aggressive attempts to schedule and complete settlement talks. Like a business, EEOC investigators often have numbers they're trying to reach by the end of the year ... and unlucky employers may be the collateral damage.

10 tips for handling an EEOC charge

An EEOC lawsuit against an employer typically starts with an administrative charge from the agency. So it’s critical for you to handle them properly.

To help you prepare your response, here are 10 tips from attorney Carl Crosby Lehmann of Gray Plant Mooty in Minneapolis, writing for our sister web site, TheHRSpecialist.com:

1. Tell the whole story. Often, an EEOC charge contains just one or two paragraphs, containing little more than conclusory allegations of discrimination. Resist the temptation to put minimal effort into your response.

It’s usually advisable to provide a comprehensive response, detailing the circumstances surrounding the employment relationship and the reasons for adverse employment actions. Try to nip the claim in the bud by giving the agency all the facts. Demonstrate that there were legitimate business reasons for your actions.

2. Use documentation. If you have documents supporting your version of events, consider including them in your response. Documentation dating from the time of the adverse employment action can be the best way of discrediting the allegations. Attendance records, sales reports and e-mail messages can all help prove that events happened as you say they did, and that the company’s concerns were bona fide.

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. One of the best ways to demonstrate that a decision was not motivated by unlawful discrimination is to point to the same actions being taken against similarly situated employees who are not members of the charging party’s protected class. For example, if the charging party alleges that her termination was motivated by discrimination against women, tell the agency of instances when you terminated men for the same misconduct.

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 your actions. Think about why the charging party’s performance concerned you. Would that be readily apparent to an outsider? For example, if you are legally required to have a certain number of staff on hand at all times, explaining this will emphasize why poor attendance would be a significant problem in your workplace.

6. Maintain confidentiality. Information about the charge should be on a need-to-know basis, especially if the charging party is still employed. If you know investigators will contact employees, couch your message in terms like this: “While we do not feel there is any merit to the allegations, we respect Employee X’s right to bring this charge. If you are contacted by the agency, you should cooperate and be completely honest with the investigator.”

7. Be prompt and cooperative. Don’t put off preparing your response. Anti-discrimination 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 legal counsel. Because a discrimination charge can be the first step in a chain of legal actions, you must protect your company’s interests. Many employers ask their attorneys to investigate and prepare the response. At the very least, have an attorney review a draft before you submit it.

9. Contact your insurer. Insurance policies require insured parties to provide 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 companies 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 e-mails, voice mails and Internet usage records.

Final note: Taking the charge process seriously, and defending against the allegations at this stage can increase the likelihood of a favorable determination and help prevent further legal actions.

{ 1 comment… read it below or add one }

Nancy Weeks September 21, 2012 at 11:27 am

A firm as prestigious and litigous as Seyfarth Shaw should know that the money the Agency recovers in litigation does not, and legally cannot, offset any budget shortfall. Shame on them for spreading disinformation.

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