HOW TO DEFEND A CHARGE OF DISCRIMINATION AT THE EEOC


I. STRUCURE OF THE EEOC AT THE LOCAL LEVEL – FIELD OPERATIONS.

A. District Director

B. Regional Attorney

C. Supervisory Investigators

D. Investigators

E. Legal Unit

F. Mediation Unit

bullet Category “B” Charges
 
bullet Firewall – Confidentiality
 
bullet Company Settlement Agreement

II. CATEGORIES OF CHARGES BY PRIORITY

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“A” Charges – Receive highest level of investigation.
 

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“B” Charges – additional investigation.
 

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“C” Charges – summarily dismissed.

III. WHAT TO DO WHEN YOU RECEIVE A CHARGE OF DISCRIMINATION FROM THE EEOC.

A. Using a Lawyer.
 
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Preservation of attorney-client privilege and work-product privilege if litigation ensues.

B. Review and analyze the contents of the Charge Form.

1. Timeliness of the Charge/Statute of Limitations.

a. Charge to be filed within 180 days of the incident that gives rise to the Charge.

b. Charge to be filed within 300 days if State (Texas) has an FEP agency. Texas

Workforce Commission – Civil Rights Division. Texas Agency has a work-sharing

agreement with the EEOC that provides charge is filed jointly with both.

c. Continuing violation.
 
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certain ongoing discrimination.

2. Jurisdiction of the EEOC.

    a. Employers with 15 or more employees.

C. Obtain from Investigator all facts alleged by Charging Party in support of the Charge.

  1. Charge of Discrimination
     

  2. Intake Questionnaire
     

  3. Who? What? When? Where? Who Present?
     

  4. Investigator’s interview with Charging Party
     

  5. Whether Charging Party has identified comparators

          a. How treated differently

D. EEOC Policy Guidance.
 
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EEOC Compliance Manual – www.eeoc.gov

E. Conduct an investigation to ascertain the truth of the matters alleged.

    1. Interview all company representatives who are alleged to have engaged in

        unlawful conduct.

    2. Interview all other company representatives who may have evidence regarding

        the  allegations.

    3. Review all company documents that are relevant to the defense of the Charge.

         a. Electronic documents – e-mail

    4. Interview employees who may have evidence that bears on the Charge.

      a. The Charging Party employee and other employees.

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The Respondent should inform the EEOC of its intention to interview the

Charging Party. This helps to counteract the natural suspicion within the

EEOC when the Respondent is thought to be acting surreptitiously.
 

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The Respondent should interview the Charging Party in a manner that is

consistent with the Respondent’s ordinary investigative procedures.
 

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The Respondent should not unreasonably prolong the interview.
 

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The Respondent’s interviewer/investigator should not appear antagonistic

to the Charging Party or to the Charging Party’s position.
 

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Except under extraordinary circumstances, the interview should focus on the

Charging Party’s allegations and should not investigate the Charging Party.

The EEOC will look skeptically at Respondent’s conduct, if, for example,

an interview of a sexual harassment victim were to turn into an investigation

into the Charging Party’s substandard job performance.
 

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The Respondent’s interviewer/investigator must not overreach. For example,

the Charging Party should not be interviewed on a weekend, off the clock,

late at night, at a lawyer’s office, or at some other undesirable hour or

location. The Respondent should avoid a second interview, if possible,

where the Charging Party was interviewed prior to filing the Charge as a

result of some internal investigation. It is foreseeable that both the

Charging Party and the EEOC might consider a second interview excessive

and evidence of harassment and possibly retaliation.
 

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The Respondent should instruct the Charging Party on the Respondent’s

policy against retaliation and give the Charging Party the name and telephone

number of a person to contact should the Charging Party believe that he or

she is being subject to retaliation. See Donald R. Livingston,

EEOC Litigation and Charge Resolution, p. 291-92, (2005).

        b. Avoiding or Minimizing the Risk of Retaliation claims.

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Conduct the investigation by a person who:

 o   Is outside of the witness’s chain of command; and

 o   Would not be perceived by the EEOC or the Charging Party as having

      a bias that would prejudice the outcome of the investigation.
 

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Keep the information obtained from the witness confidential and unavailable

to the witness’ supervisors.
 

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Request that the witness not disclose the substance of his or her

statements to coworkers and supervisors.
 

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Remind the witness of the company’s policy against retaliation.
 

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Provide the witness with a point of contact in the event that the

witness should be subject to or perceive retaliation.
 

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Where disciplinary action is later warranted against someone who was

a witness, confirm that the discipline is warranted  under the company’s

policies and that the employee is not being subjected to harassing,

retaliatory or disparate treatment. Id. at p. 293.

     5. Other sources of evidence.

         a. Texas Workforce Commission Unemployment Claims, Transcripts and

             Decisions.

F. Form of Presentation of Evidence to the EEOC.
 
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EEOC Questionnaire (Request for Information) – Company response.
     
 Extension of time.
 

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Affidavits taken by Charged Party (Company).
 

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Statement of Position (Letter Brief).

o    Recount Charging Party’s facts.

o    Set forth company’s facts.

o    Argument.

o    Use of Statement of Position by Charging Party’s attorney in litigation.
 

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On-Site Investigation.

o    Affidavit taken by Investigator.

o    Supervisory vs. employee witnesses.

G. The EEOC’s Decision-Making Process at the District Level.

      1. Cause Finding.

      2. Dismissal.

      3. Right to Sue Letter.

H. Settlement of Case Where District Director’s Decision is cause finding -
    reasonable cause  exists to believe that an unlawful employment practice
    has  occurred or is occurring.


     1. Conciliation

I. Attorney for Charging Party’s access to EEOC file prior to filing suit.
 
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EEOC referral list of Plaintiff’s attorneys.

J. Lawsuit filed by EEOC or Charging Party’s attorney.

K. Attorney for Company - access to EEOC file after suit filed.
 
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FOIA Request.  

 

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