November 28th, 2018
Kristin Gray at FordHarrison
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 3 of 3
In this three-part series, we are exploring best practices for handling a charge of discrimination. The first part of the series addressed important preliminary questions you should be asking upon initial receipt of the charge. The second part dealt with best practices for the investigation phase of the administrative process. This final part of the series will address what you should do once the EEOC issues its finding.
After the investigator has completed the investigation and submitted the matter for review, the EEOC will generally issue a determination: (1) finding there is “no cause” to believe discrimination has occurred, which will be in the form of a Dismissal and Notice of Right to Sue; or (2) finding there is “cause” to believe discrimination occurred.
A no cause finding! So that’s it? No. Contrary to popular belief, even if the EEOC made a “no cause” determination, the charging party may still file a federal lawsuit within 90 days of the dismissal. You will want to calendar this deadline and remain vigilant for service of a summons and complaint even after the 90 days has passed, because your legal counsel will need to take prompt action to defend against any lawsuit. The clock starts ticking as soon as you are served. In addition, keep in mind that potential state law claims with longer statutes of limitations and filing deadlines may exist.
Even if no litigation arises, you will want to seriously consider whether any further action is required to prevent future charges of discrimination. For example, are you regularly conducting anti-discrimination and anti-harassment training? Are your managers well versed on how to respond to an internal employee complaint? Do you have an adequate reporting procedure in place, and are your employees trained on it? Did the investigation reveal employee issues that, while not evidence of unlawful discrimination, require your attention or present opportunities for improvement? You will also want to make clear to employees that retaliation is strictly prohibited and will not be tolerated.
A cause finding! Now what? If the EEOC determines that there is cause to believe discrimination occurred, the EEOC may attempt to have the parties participate in conciliation. Conciliation is a form of settlement negotiations in which the EEOC takes an active role. The EEOC will usually request that the employer pay the charging party back pay and other monetary damages to settle the charge. The EEOC may also request additional relief, such as that the employer reinstate the charging party, post a notice that it has violated the law, provide its employees with additional training, and provide updates to the EEOC on the employer’s compliance with the terms of the conciliation agreement.
Keep in mind that the EEOC usually refuses to include confidentiality provisions in conciliation agreements, and the EEOC may publicize any settlement. If conciliation efforts fail, the EEOC may issue the charging party a Notice of Right to Sue or, in rare circumstances, the agency may file a lawsuit itself on behalf of the individual.
The cost of employment litigation can easily reach into the tens of thousands of dollars, even if the employer prevails. Take charges of discrimination seriously, regardless of the veracity of the allegations. In our experience, proactive measures, such as well-drafted policies and employee training, can often help defeat or even prevent charges of discrimination.
We hope you have enjoyed this three-part series. If you have any questions regarding this series, please contact the author, Kristin Gray, who is an attorney in our Spartanburg, SC office, at firstname.lastname@example.org, or the FordHarrison attorney with whom you usually work.