At this year’s Labor & Employment Law Section of the State Bar’s Annual Conference, William R. Tamayo provided helpful insight regarding what to do when the EEOC contacts you about a claim of harassment or discrimination.
Mr. Tamayos is the Regional Attorney for the EEOC San Francisco District (Northern California, Northern Nevada, Oregon, Washington, Alaska, Idaho and Montana). Here are:
TAMAYO’S TOP TEN TIPS FOR RESPONDENTS
1. Short Trip v. Long Trip: If you’ve just been served with a charge of discrimination from the EEOC, it could just be the beginning of a long trip or the beginning of a short trip. What you did before the charge and what you do afterwards will determine the length of the trip.
2. DON’T RETALIATE: If an employee complains about discrimination, do not retaliate against her, her witnesses, co-workers and HR staff. Any employer action that may serve to “chill out” the charging party (e.g. suspension, demotion, termination, harassment, isolation, threat of deportation, etc.) and dissuade her from pursuing her case violates Title VII and an employer can be liable for damages including compensatory and punitive damages. Retaliation is a separate cause of action under Title VII. If the retaliation is severe and could serve to thwart the EEOC investigation, EEOC can seek a preliminary injunction in federal court barring the retaliatory activity. The existence of a federal investigation into your company and the company’s attempts to thwart the investigation become a matter of public record when a lawsuit is filed.
3. DON’T DESTROY EVIDENCE: Under federal law, once you know a charge has been filed, you must maintain your records. Destruction of evidence and failure to maintain records violate Title VII. Courts don’t like it!!
4. Cooperate: If we ask you for information, please give it. The EEOC has broad powers under Title VII of the Civil Rights Act of 1964, to ask for all relevant information, documents, access to witnesses, visits to worksites, etc. If you don’t cooperate, we will issue an administrative subpoena. If you don ‘t comply, EEOC can file a lawsuit in federal court to enforce the subpoena. The existence of a federal investigation into your company then becomes a matter of public record. If the court orders the company to comply with the subpoena (99% success rate) we may issue a press release stating that the company was refusing to turn over information in a federal investigation of civil rights violations but the federal court has ordered the company to comply.
During the investigation, cooperate with the EEOC investigator and provide the necessary information. If you need more time to compile the information, you can ask for an extension but don’t abuse it. Remember, the investigation stage is your chance to get the company’s version before the EEOC. The EEOC works as a fact finder at that stage. The EEOC only finds “cause” in about 10% of the charges filed nationwide.
5. Use Conciliation: If the EEOC issues a finding of discrimination (Letter of Determination) seriously consider the invitation to conciliate the case. Conciliation is the last chance to settle a matter with the EEOC confidentially and without a lawsuit. Make a serious offer. Remember most cases settle when they reach conciliation. The money, attorneys’ fees, time, anguish and pressure spent in litigation will outweigh the amount spent in conciliation. Don’t blow the deadline or disregard the EEOC. Don’t ask for mediation as a substitute for conciliation. If the case doesn’t settle in conciliation, the case is forwarded to the Regional Attorney for litigation review.
6. Charging Party Can Still Sue: If the EEOC finds “insufficient evidence” of a violation or if the EEOC found “cause” but did not sue, the trip might not end there. The charging party can still file suit in state or federal court. She has 90 days to file suit in federal court after receiving the Notice of Right to Sue. Case law states that she has one year to file suit on her state claims in federal court. When charging parties file suit or intervene in the EEOC’s lawsuit, the company could be liable for private attorneys fees. The EEOC also has authority to intervene in a charging party’s lawsuit.
7. Press: A lawsuit by the federal government against an employer is announced through a press release and/or a press conference. It can be embarrassing. There are several reporters who have followed EEOC cases (especially in agriculture) and will do an excellent job. Your employees, customers, family members, community, and competitors will know about the lawsuit. In cases of egregious behavior by management, you can almost always be sure that other victims will come out of the woodwork. This could result in more charges being filed, or more victims for whom the EEOC will try to get money. The EEOC is authorized by law to get relief for class members who did not file charges and who surface during the investigation or during the lawsuit.
8. Try to Settle: After the lawsuit is filed, use every opportunity to settle the case. This can come through early neutral evaluation (ENE), early mediation, settlement conferences, or private mediation. But make a serious not a token offer to settle which includes something for compensatory damages, punitive damages, back pay, front pay and training for management. Settlement authority rests with the Regional Attorney. All the posturing doesn’t score points with me nor does it move towards resolution. The mediators and judges have seen it all.
9. The EEOC sues in the public interest: While we are suing on behalf of a specific charging party or parties, the EEOC directs the litigation and settlement authority. All settlements are a matter of public record, generally resolved through a Consent Decree that is filed with the Court. A press release is issued announcing the settlement.
10. Training, training, training: Train your staff regularly on the laws against employment discrimination. How much training you provided or didn’t provide and how much training you received or didn’t receive especially in harassment lawsuits, will generally be an issue. Make sure top managers and all supervisors take these laws and the training seriously, EEOC has recovered large settlements when top managers are involved in the harassment and/or completely ignore the complaints of harassment. When several women complain of harassment by top managers, you can be sure that many more victims will come out of the woodwork. Those are easy cases to prove. Many of the harassment cases could have been prevented if management conducted training, held managers accountable and disciplined the harassers.
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