Discrimination CHARGE! – Step 1 Don't panic, ask questions

November 28th, 2018

Kristin Gray at FordHarrison


Charge

This blog was written by Kristin Gray at FordHarrison, which authors our "Hiring, Firing and Discipline for Employers" and "An Employer's Guide to FMLA and ADA". You can find the original blog post and their Legal Alerts on their website.

 

Help! I Just Received a Charge of Discrimination. Now What? - Part 1 of 3

Kristin Gray

So you’ve just received a charge of discrimination from the Equal Employment Opportunity Commission (“EEOC”) or a local agency.  Now what?  In this three-part series, we will explore best practices for handling a charge. 

This first part of the series will explore important preliminary questions you should be asking upon initial receipt of the charge.  The second part will deal with best practices for the investigation phase of the administrative process.  The final part will address what you should do after the EEOC issues its finding.

If you have received a charge, know that you are not alone.  In Fiscal Year 2017 alone, the EEOC was responsible for 84,254 charges, and this figure does not include state or local agencies.  This three-part series will help guide you through the charge process.

Who is the EEOC?  The EEOC is the federal agency responsible for enforcing federal laws that prohibit discrimination against job applicants or employees because of their race, color, religion, sex (including pregnancy), national origin, age, disability or genetic information.  In addition, many state and local jurisdictions have their own anti-discrimination laws and their own agencies (known as Fair Employment Practice Agencies or “FEPAs”) responsible for enforcing those laws.  Many FEPAs, such as the South Carolina Human Affairs Commission (“SCHAC”), have work-sharing agreements with the EEOC, so charges may be dually filed with the EEOC and the applicable contract FEPA.

Is my business covered?  One of the first questions to consider is whether your business has enough employees to be covered.  Most employers with at least 15 employees are covered (20 employees in age discrimination cases) in the federal context, but remember that local laws’ requirements may vary.  If your business does not meet this threshold, that issue should be raised as soon as possible, so that the EEOC or the FEPA has sufficient information to proceed with a timely dismissal. 

Is the charge timely?  Upon receipt of the charge, make sure you are paying close attention to the dates of the alleged incidents and compare them to the date the charge was filed.  Individuals who believe they have been subjected to discrimination generally have 180 days to file a charge with the EEOC.  Individuals who dual-file a charge with a FEPA (such as SCHAC) have 300 days from the incident to file an EEOC charge. 

How should I respond to a request to mediate?  Once the charge has been filed, the EEOC or the FEPA may offer the parties free voluntary mediation with an agency mediator.  In addition to providing an opportunity for early resolution, the EEOC or the FEPA will not investigate the charge or require an employer to respond pending the outcome of the mediation.  However, if you agree to mediation, you need to come prepared with settlement authority and make good faith efforts to resolve the matter.  If the matter is not resolved at mediation, the agency will assign an investigator.

Keep in mind that there are several reasons why the agency may not offer mediation to the parties.  It could mean that it is apparent on the face of the charge that the allegations have no merit (e.g., the charge is untimely or it alleges violations of a law not enforced by the EEOC).  It could also be a red flag that the agency believes investigation or enforcement is more appropriate given the seriousness of the allegations or the specific area of concern involved. 

Stay tuned for Part 2 where we will discuss the investigation process.  If you have any questions regarding this series, please contact the author, Kristin Gray, who is an attorney in our Spartanburg, SC office, at kgray@fordharrison.com, or the FordHarrison attorney with whom you usually work.