Playin’ it cool: How to handle an EEOC bias charge
When a charge of discrimination lands in your lap from the U.S. Equal Employment Opportunity Commission (EEOC) or its equivalent state agency, the way you respond is key to how the matter is resolved.
Here's some advice from consultant Mary-Jane Sinclair, president of MJS Associates in Morristown, N.J.
Don't admit or promise anything
When the EEO charge first arrives, Sinclair says, simply acknowledge receiving it. Don't admit or promise anything.
You can request an extension of the deadline to respond to the questionnaire, and some managers ask for that right off the bat. In seeking an extension, you can bolster your position by pointing out the reasonable business issues involved. For example, key employees that you need to interview may be on vacation.
Don't assume that you have to provide certain information simply because the questionnaire asks for it. If you think the agency is fishing for information or asking for documents outside the relevant time frame, call them on it, in a nice way, asking them to explain why the items are relevant.
Get reading of affidavit
Talking with the EEOC official handling the charge can yield a wealth of information. You may be able to tell more about the charge and how it is being viewed simply by the person's tone.
While the EEOC can't give you a copy of the charging affidavit, a staffer can read it to you over the phone, Sinclair says.
Remember, however, that there is no such thing as an "off the record" conversation with the EEOC. To document what has been decided, recap all phone conversations in writing. "I don't believe in an adversarial relationship with the EEO specialist," Sinclair says.
But, if the EEOC staffer's comments indicate bias against your business, write down what was said and call that person's boss, explaining that you are uncomfortable with the person.
Keep quiet about the claim
Initially, reveal the presence of the EEO charge only to employees at your company who have a need to know. This may include legal counsel, the CEO and the supervisor, if that person is not the accused.
Make an extra effort to avoid any appearance of retaliating against the worker who filed the complaint. Have your HR director review all actions involving that person, including evaluations and transfers. Of the more than 77,000 individual charges filed with the EEOC in fiscal 1999, a quarter included allegations of retaliation.
In documenting your investigation, keep the information to the relevant facts, no assumptions or conclusions. Remember that those documents could later become part of a court case.
When drafting your position statement, remember that you are selling the company's position. Stick to the facts, but use strong language to present the company's position. Open with your denial, provide relevant company information, such as recent layoffs, and the facts of the company's version of what happened compared to the complaint. Include comparative evidence and a closing summary.
"Give them the whole case, in English," Sinclair says. Be clear, succinct and avoid abbreviations.
Don't underestimate the importance of careful editing, either. You don't want this document to leave the impression that your company doesn't pay attention to detail.
As part of the position statement, ask the agency to dismiss the claim. "You're allowed to ask for what you want," Sinclair notes.
Check insurance before settling
With only 10 to 15 days to decide whether to mediate the claim, you'll need to know what your company's insurance will cover.
If your investigation shows your company is wrong, Sinclair's advice is to fix it and move on.
When settling a claim, you'll want to make sure the company admits no guilt and that the agreement includes a confidentiality clause.
Follow up
If the EEOC seeks a fact-finding conference for more information, seek ways to provide the information without the agency coming to your site. Try to limit the witnesses, and remember that you can sit in on management interviews.
"If they're going off track, put them right back on the rails," Sinclair says.
Brief the participants before the conference. Tell them to speak only when spoken to, let the person finish the question before answering, answer simply and, of course, tell the truth.
"I've seen managers indict themselves by answering what they thought was the question," Sinclair says.
The good news, according to Sinclair: Less than 3 percent of complaints end in a finding of discrimination.
