Abraham Lincoln is credited with saying “he who represents himself has a fool for a client.” I believe the same is true for any company that does not enlist the services of an employment lawyer to represent it in matters before the U.S. Equal Employment Opportunity Commission (“EEOC”).
The EEOC is the agency responsible for enforcing federal laws prohibiting discrimination against job applicants and employees because of the person’s race, sex (including pregnancy), national origin, religion, color, age (40 or older), disability or genetic information. In 2012, the EEOC received nearly 100,000 charges of discrimination. That is an increase of approximately 33% over the number of charges filed in 2006, and is the most charges filed in the history of the organization.
If your company has never had to respond to a Charge of Discrimination, congratulations…….and knock on wood. In all likelihood, it is just a matter of time before an applicant, employee or former employee alleges that they were not hired, not promoted or were fired in violation of one of the federal employment laws within the province of the EEOC’s investigative power.
I know some employers have regarded the process lightly and simply handled the matter in-house, with the business owner, executive, human resources professional or in-house counsel formulating the company’s response to the charge of discrimination if for no other reason than to save money. I believe any company faced with a Charge of Discrimination and EEOC investigation needs to retain a lawyer for a number of reasons.
1. The EEOC has real power.
Here is how the EEOC investigation works: Once the aggrieved applicant or employee (the “charging party”) goes to the EEOC, the EEOC intake coordinator works with him or her to draft the “charge of discrimination.” By this point, the charging party may have already met with a lawyer who is working behind the scenes by giving a blueprint of what the charging party will tell the EEOC intake coordinator or by perhaps drafting a written statement for the charging party to give the EEOC intake coordinator.
The charge of discrimination is then assigned to an EEOC investigator who reviews the charge and compiles a “request for information” to send to the employer. The EEOC then notifies the employer that a charge of discrimination has been filed against it by providing it with a copy of the charging party’s allegations along with the request for information. The amount of information and categories of documents the EEOC requests from the employer varies depending on the specific allegations, but it will typically include(s) (1) copies of the charging party’s personnel files and other files or communication concerning the charging party; (2) other relevant employees’ personnel files; (3) employee handbooks and other specific relevant company policies; (4) payroll records; (5) a list of all employees hired or fired during a certain period and information on each employee (name, age, race, position, rate of pay). Most importantly, the EEOC asks for the employer to provide a position statement in response to the charging party’s allegations. All of this information must be compiled in a relatively short time frame.
Once the EEOC receives the company’s position statement and documents, as part of the administrative enforcement process, the investigator may ask for even more information. The investigator may also interview certain current or former employees. The investigator may also ask to conduct an on-site inspection of the company’s facility and interviews of key decisionmakers. The on-site could include interviews, review of voluminous files and the company’s recordkeeping practices.
Once the EEOC completes its investigation, it may find “cause” to believe that discrimination occurred or it may dismiss it with no such finding. If it finds “cause”, it may attempt to resolve the matter through its conciliation process, which basically involves the EEOC sending a settlement demand on behalf of the charging party and asks the employer to take some sort of remedial action. The EEOC is also empowered to pursue litigation on behalf of the charging party. The EEOC pursues litigation in hundreds of cases every year.
An employer would be ill-advised to walk this path without being represented by an attorney who knows the employment law terrain and who has worked closely with the employer in responding to the allegations against it.
2. Objective expertise.
Obviously, a business has to be cost-conscious and involving a lawyer in responding to an EEOC charge is an added cost. However, while employment law is not rocket science, it is a specialty that is not suitable for “dabbling.” An employment law specialist will be able to apply his or her expertise to the facts and spot trouble areas in an objective fashion, without having his or her judgment impacted by being too close to the situation or the relevant players.
Without getting into a lengthy discussion of the concepts of attorney-client privilege and the “work product doctrine”, if you hire outside counsel you will gain the benefit of your communications with counsel being cloaked with the attorney-client privilege. Generally speaking, if someone on your executive team investigates the matter, all of that team member’s notes and findings may become subject to production if litigation ensues. Communications between you or your executive team and the attorney as well as the attorney’s impressions and conclusions will be privileged or otherwise protected from disclosure.
4. An employment lawyer will have been there and done that.
I could not even begin to guess how many EEOC charge responses I have handled over the years. It has been a long time since I have seen an item in the EEOC’s request for information that I had not seen in a prior request. This is true for any employment lawyer with extensive experience dealing with the EEOC. Additionally, an employment lawyer with experience likely will have handled facts similar to your situation. Finally, an employment lawyer with experience dealing with the EEOC may be very familiar with the investigator assigned to your matter and will know what he or she is looking for and what might raise a red flag.
5. Anything you say can and will be used against you.
As noted above, it is possible that by the time you receive a copy of the charge of discrimination, the charging party will have already met with a lawyer. Regardless of the results of the EEOC investigation, the charging party can file a lawsuit against the company and, in some case, against certain individuals who were involved in the alleged discrimination or retaliation. Under the Freedom of Information Act, the charging party or his lawyer can (and will) request that the EEOC provide documents pertaining to the charge. Of course, this will include the information and documents that the company provides to the EEOC in response to the charge and request for information.
Some lawyers will disagree with me on this, but I think it is a mistake for the company’s position statement to be a lengthy “brief” worthy of being filed with the U.S. Supreme Court. Certainly, all information that the EEOC’s request should be provided, but I have seen lawyers submit position statements to the EEOC that are 10-pages or more. This does a disservice to the company both from the standpoints of strategy and efficiency.
Strategically, why put all of your cards on the table if you do not have to? If the matter ends up in litigation, I know that the charging party’s lawyer is going to get her hands on what is submitted to the EEOC. Knowing that, why in the world would I give a preview to each and every argument that I will advance if the case was litigated? It would be like letting the other team in a football game know in advance each every play you are going to run against it.
Additionally, I prefer to take a “just the facts” approach in responding to the EEOC because I know that the EEOC investigator does need me to cite a string of case law. Generally, the investigator is going to know the applicable law and I just need to tell her why the facts of this situation do not amount to unlawful discrimination. In thirteen years, I believe I have only cited a court case two or three times and those involved very unique nuances of the law.
In addition to the strategic benefits of a “just the facts” approach, I know as a business owner or executive you appreciate when a matter is handled effectively and cost-efficiently.