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10 steps to take before responding to a charge of discrimination

by Susan Hartmus Hiser

After the Equal Employment Opportunity Commission (EEOC) receives a discrimination complaint from an employee, it begins gathering information about the allegations of discriminatory treatment. That process includes asking the employer to provide relevant documents. Additionally, the agency typically will ask the employer to submit a position statement setting out its response to the accusations of discriminatory conduct. Here are 10 basic steps that should be your standard procedure before you respond to the EEOC.   

(1) Inform your legal counsel immediately. As noted above, prompt communication with your legal counsel is important, especially if you’re using the EEOC’s new digital portal system (to be discussed later in our series). Because the system doesn’t currently permit requests for an extension to respond to a charge, you have 30 days to investigate, gather and review relevant documentation, and timely respond to a charge.

If the charging party is involved in other proceedings against your company (e.g., a workers’ compensation or unemployment claim, arbitration, or an unfair labor practice charge), ensure that your position is consistent in all proceedings. Alert your legal counsel right away to verify the uniformity of your defense. Admissions in one proceeding may be used against you in another.

An important yet often overlooked benefit of working with outside counsel when you first receive notice of a discrimination charge is that communications between you and your attorney are “cloaked” with the attorney-client privilege. When someone on your executive team investigates a complaint or charge, all her notes may have to be turned over to the other party if litigation ensues. By contrast, communications between you and your attorney, as well as the attorney’s impressions and conclusions, are privileged and protected from disclosure.

(2) Gather and review all relevant documentation. The relevant documentation that you should immediately assemble after receiving a charge of discrimination generally includes the charging party’s personnel file; your company policy manual or employee handbook; all documentation relevant to the personnel decision or incident that led to the charge; files or notes kept by managers or supervisors; personnel documents of similarly situated employees; complaints or investigations involving the charging party or the relevant decision maker; payroll and compensation documents; and supporting witness statements, if applicable. In addition, for failure to hire or promote claims, you should collect the job vacancy announcement, the job qualifications, the applications submitted by the charging party and the successful candidate, interview notes, and any other documents relevant to the hiring decision.

(3) Preserve relevant evidence. Instruct your technology staff or employees tasked with information management to suspend the purging of e-mails, voice mails, and Internet usage records that could be relevant to the underlying charge. Courts are increasingly imposing harsh sanctions on companies that fail to preserve relevant evidence.

(4) Identify employees who will assist with the response. At a minimum, include all managerial employees, decision makers, and HR personnel who were involved in the decisions or incidents that led to the charge. Additionally, identify anyone who directly observed an incident relevant to the subject of the charge and anyone who has relevant information that isn’t self-explanatory or self-authenticating.

(5) Prepare for witness interviews. Take time to prepare for each witness interview. Know what the key issues in the underlying charge are. Before the interview, draft a list of topics to discuss with each witness, such as the charging party’s allegations; explanations for the challenged actions; how other employees are similarly situated; separate incidents that may have contributed to the underlying charge; and additional individuals who witnessed or were related in any way to the subject of the charge.

(6) Interview witnesses. Talk to all decision makers, including management and HR personnel, who were involved in the decisions or incidents that led to the charge. In addition, interview anyone who directly observed an incident related to the charge, as well as anyone who provided relevant documentation that isn’t self-explanatory or self-authenticating. If you’re working with outside counsel, include your attorney in the interviews so they will be covered by the attorney-client privilege.

During the witness interviews, ask the “5 Ws and 1 H”: Who was involved, what happened, when did it happen, why did it happen, where did it take place, and how did it occur? Then ask direct follow-up questions based on the answers. Always ask each person you interview whether he is aware of any documents (including e-mails, text messages, pictures, or video) that may support your defense or whether he knows if other individuals can provide additional information about the underlying charge.

If possible, conduct witness interviews in person, particularly when you’re interviewing key decision makers. Information gained in a face-to-face interview, including body language, is always worth more than a telephone call—and certainly much more than a mere e-mail.

(7) Maintain confidentiality. Information about the charge of discrimination should be shared only on a need-to-know basis, particularly if the employee who filed the charge is still employed at your company.

(8) Avoid retaliation or the appearance of retaliation. If the employee who filed the charge is still employed at your company and management is aware of the EEOC charge, establish a point of contact (generally, your legal counsel) from which management may seek advice before taking any action related to any issues involving the employee (e.g., disciplinary warnings, transfers, promotions).

If the employee who filed the charge is no longer employed at your company, establish a point of contact to oversee and review your responses to any reference checks from potential employers. Inform and educate higher-level managers, first-line supervisors, and anyone involved in the underlying allegations about your company’s antiretaliation policy.

(9) Draft legible witness statements and notes. While this may seem self-explanatory, illegible, confusing, or incomprehensible witness statements and notes from HR personnel, management, and coworkers certainly won’t help your defense. If attorneys can’t read and understand the evidence, the EEOC investigator won’t be able to, either.

Accordingly, be mindful about taking legible, detailed written notes, and drafting comprehensible witness statements. Remember to label each witness statement with the names of the witness and the interviewer as well as the date the statement was taken. Consider typing the witness statement and asking the witness to review and sign the final draft, if appropriate.

(10) Contact your insurer. If your insurance policy requires prompt notice of claims and charges of discrimination, notify the insurer to avoid a denial of coverage.

Susan Hartmus Hiser is a shareholder with The Murray Law Group, P.C., in Detroit. She may be contacted at shiser@vmpclaw.com.