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.
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Charge of Discrimination
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Intake Questionnaire
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Who? What? When? Where? Who Present?
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Investigator’s interview with Charging Party
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Whether Charging Party has identified comparators
a. How treated differently
D. EEOC Policy Guidance.
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.
o
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
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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. |
