Discrimination CHARGE! – Step 3 Cause or no cause, because you gotta do something

November 28th, 2018 by Kristin Gray at FordHarrison


Charge 3

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

Kristin Gray

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 kgray@fordharrison.com, or the FordHarrison attorney with whom you usually work. 

Help! I Just Received a Charge of Discrimination. Now What? Series
Part 1 - click here
Part 2 - click here



Free Webinar
Transgender issues in the workplace

March 28th, 2019 at 11:00am CDT

SHRM & HRCI certified

Related posts

Why You Should Care About Employment Law

Common Pitfalls for Emerging Companies Founders of emerging companies are often first-time employers and find themselves having to wade through the dense patchwork of state and federal labor and employment laws. This can be a confusing undertaking that often requires legal counsel. However, th...

Workplace Christmas Quiz (this is legit and will secondarily eat up some time before you get to go home)

This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers and our New Jersey Human Resources Manual. You can find the original on their Employment & Labor Insider blog (which is one of our favorites and is excellent).   Workplace ...

MeToo, avoiding women, and the modified Mike Pence Rule

This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers and our New Jersey Human Resources Manual. You can find the original on their Employment & Labor Insider blog (which is one of our favorites and is excellent).   Avoid wome...

Discrimination CHARGE! – Step 2 Go Kim Possible for the investigation phase

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. ...

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

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. ...

Disability/pregnancy practices – what not to practice

This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers and our New Jersey Human Resources Manual. You can find the original on their Employment & Labor Insider blog (which is one of our favorites and is excellent).   Employers,...

How to Address an Unflattering Video of an Employee

Memo for Unflattering Social Media Content A PR statement employers may want to save for a rainy day. FOR IMMEDIATE RELEASE Date: TBD (embargo until needed) Contact: Corporate Communications Director Our company is an equal opportunity employer, and we take pride in our diversity. Toda...

Written warnings and the FAQs they spawn

The DOs and DON’Ts of Written Warnings: What Employers Need to Know Ursula A. Kienbaum Employers frequently use written warnings as part of their formal progressive discipline policies. How and when to use these warnings can sometimes be tricky. Below are answers to some frequently asked qu...

Cursing, surfing, weapons, gadgets – illegal, inappropriate or OK?

It happens in almost every workplace almost every day: somebody swears or is on an iffy website or is carrying a knife (or worse) or is using their own (not secure) phone or computer to send off a quick business email or text. So what is illegal, what is inappropriate and what is just not that...

TN – A drug-free workplace program is good

Tennessee Department of Labor Revises Drug-Free Workplace Program Requirements William S. Rutchow Twenty years ago, the Tennessee Department of Labor (TNDOL) adopted regulations implementing the Tennessee Drug-Free Workplace Act and establishing the Tennessee Drug-Free Workplace Program. Th...