You’ve Been Charged With Discrimination! Now What?

Dr. Martin Luther King, Jr., whose birthday we celebrate today, devoted his life to fighting discrimination. He likely would have been proud to see what has been achieved, often in his name … the creation of an entire body of law to protect individuals from unfair treatment based on race, age, gender, national identity and other factors.

The other side of the issue, however, is that, charges of discrimination are sometimes unwarranted or brought for less than noble motives. Employees may seek monetary gains in a lawsuit or wish to cause you trouble for some reason. Their charges will nevertheless be investigated by the Equal Employment Opportunity Commission (EEOC) or state agencies as a matter of course.

What should employers do if they receive a “Notice of Charge of Discrimination”.

“First, Ask for An Extension of Time…”

“Don’t panic,” says legal expert James Kingma, writing in Workforce Management. “A large majority of the charges filed will be found ‘without reasonable cause.’” Nevertheless, he says, “you will still need to conduct a thorough investigation and prepare a credible response.”

First, though, he advises asking for an extension of time to respond (30 days are routinely granted) and second, check if the charge was filed within 300 days of the alleged incident. If not, that alone can end the episode.

If the charge was properly filed, Kingma and other experts agree that conducting an independent investigation is absolutely necessary. That point was buttressed by a recent court decision in which an African-American worker was fired, based on information provided to the firing manager by the worker’s supervisor, a man later alleged to have had racist tendencies. Although the firing manager was not racist, the company was still held liable because there was no independent investigation.

The case was based on the so-called “cat’s paw” principle of law, named after a child’s fable in which a monkey dupes a cat into stealing chestnuts from a fire for him. Though it’s the monkey that benefits from the crime, the cat still gets burned.

If you’d rather not get burned, here are keys to conducting a solid independent investigation:

–Get the complaint in writing, signed and dated by the complainant. Written statements lessen the chance that stories will change later.

–Obtain statements from all involved, including the complainant, the alleged offender and all witnesses who can provide information.

–Avoid using your attorney as an investigator. If you do, he or she might be called as a witness in court, possibly waiving your right to attorney-client privilege. Use a neutral third party instead, who reports information to the attorney.

–Keep things low key, but do not promise confidentiality. You may be required to hand sensitive information over to officials or a plaintiff’s attorney.

–Allow nothing off the record. And keep all records in a separate investigative file.

–Ban retaliation! Even if the original charge turns out to be bogus, any form of retaliation will still be punished.

–Report any illegal acts uncovered to appropriate government officials.

–Consider a settlement if the charge seems warranted or difficult to defend.

In Kingma’s opinion, a settlement offer might best be made after completing your investigation, but before responding to the government’s charge.

“You [then] may have the advantage of the government investigator not knowing what you know,” he says, “and given their large caseload, most investigators will welcome and encourage any effort toward settlement.”