How to respond when EEOC, MDHR allege discrimination

The EEOC and Minnesota Department of Human Rights (MDHR) are the agencies primarily responsible for making sure employers comply with discrimination laws. When an applicant or employee files a discrimination charge in Minnesota, either agency or both will investigate.

Official notice

When a charge is filed against you, the EEOC or MDHR will notify you in writing. Upon receipt, promptly notify the appropriate individuals—such as HR, your attorney and possibly your insurance carrier—who can help you respond.

Never ignore a charge notice. Failure to respond can result in an adverse finding. The deadline to submit a response is usually 20 or 30 days, so don’t delay.

An employee must file a federal EEOC charge within 300 days of the last date of alleged discrimination. The deadline for filing a charge alleging violation of the Minnesota Human Rights Act is one year from the last date of alleged discrimination.

These time limits can be extended under certain circumstances.

Conduct a prompt investigation

Promptly investigate the charge allegations. Interview the charging party’s co-workers and managers. Ask direct questions that get to the truth so you can correct misconduct and provide a compelling defense to the charge allegations.

Document employee interviews with notes; keep them in an investigation file. It is critical to implement a legal hold to ensure that relevant documents and electronically stored information, such as emails, are preserved and not lost or deleted.

If the charging party is still employed, the company representative who is investigating should stress to everyone involved that the company will not tolerate any form of retaliation against the charging party.

Take reasonable measures to maintain confidentiality during the investigation. It is advisable not to disclose the identity of the charging party and to limit, as much as possible, the number of employees who are aware of the charge. However, anonymity will likely be difficult to maintain if corrective action is necessary, or the EEOC or MDHR conducts further investigation.

Responding to the charge

The charge notice you receive should specify a date by which the EEOC or MDHR expects a response or “position statement.” If that deadline is unworkable or unreasonable, you may request an extension. For both agencies, allowing extra time to submit a position statement is discretionary. Extensions are not always granted.

Your position statement should provide a brief overview of the company, number of employees and the nature of your business. Highlight any equal opportunity or anti-discrimination policies you have.

Keep the position statement brief, concisely stating why your conduct was fair, reasonable and lawful. Respond to each material allegation of wrongdoing in the charge. Allegations not addressed may be deemed admitted by the EEOC or MDHR.

The position statement may be discoverable in subsequent litigation. Every assertion in it must be truthful and accurate.

Additional information requested

The EEOC or MDHR may request information and documents by a Request for Information (RFI). These are often generic and broad, sometimes requesting more information than seems justified by the charge. It is reasonable to contact the investigator to work out an agreement on what information is truly necessary.

Both the EEOC and the MDHR have subpoena power. It is generally advisable to reach an agreement with the agency regarding any objections. 

Agencies sometimes request interviews with employees or site visits as part of their investigations. Set aside a private space for interviews.

You may have an attorney present when management is interviewed. This is advisable, because management statements may legally bind employers. 

Resolution of the charge

The investigation may take months or longer. After the investigation ends, the agency will typically make a finding of either no probable cause or probable cause.

For a no-cause finding, the agency will dismiss the charge and issue a right-to-sue letter to the charging party, allowing the employee to file suit. Litigation must be commenced within 45 days of an MDHR dismissal, within 90 days for an EEOC dismissal.

If the agency finds probable cause—evidence that discrimination or retaliation occurred—it can sue you directly.

This is rare. Agencies typically do not litigate unless a case involves a novel legal issue or a class of aggrieved employees or applicants.

In most cases, a probable cause finding will be followed by a request for mediation, not litigation.

If the parties cannot resolve the case through mediation, then the agency typically dismisses the charge to allow the charging party to proceed with litigation.

Kerry Middleton is a shareholder and Anthony de Sam Lazaro is an associate in the Minneapolis office of Littler Mendelson.