How to Handle an EEOC Investigation

The Equal Employment Opportunity Commission (EEOC) enforces the nation’s federal workplace anti-discrimination laws. Last year, employers paid more than $484 million to settle over 61,000 formal charges. This year’s enforcement numbers could be higher. Earlier this year, the federal agency announced its plan to hire an additional 200 employees amid a $14.5 million budget increase.

An EEOC investigation can be a lengthy and complex process for employers. Businesses should have a plan in place should their business come under EEOC scrutiny.

How does an employer find out the EEOC is conducting an investigation?

The EEOC notifies the employer via email of the charge. The notice includes a link to the “Respondent Portal.” The charge number and password are also provided. Once logged in, a “popup” appears, requiring respondents to provide or update information about the organization, including the best person to contact. After the popup closes, the “Charge of Discrimination” page appears.

Legal experts say timely responses to charges often result in maintaining goodwill with the agency and can prevent adverse findings against the employer.

This “Charge of Discrimination” page includes:

• The name of the person making the charge
• An explanation of the charge
• The charging documents.

It allows respondents to add their legal representative’s name and upload documents related to the charge.

The EEOC requests a response within 30 days and discourages extensions of time. The respondent must provide “good cause” when requesting a deadline extension, and an estimate of the additional time must be provided.

Legal experts say timely responses to charges often result in maintaining goodwill with the agency and can prevent adverse findings against the employer.

If the employer refuses to cooperate, the EEOC can issue a subpoena to get the necessary information, including access to facilities. It can also choose to decide based on the available information.

The employer is under an imposed “litigation hold” as soon as they know about the charge. This means the employer must preserve all docs that are relevant to the charges.

Who is going to manage the EEOC investigation?

“At the outset, you should determine who will conduct the investigation,” David Miklas, a Florida-based employment law attorney, said. Employers should decide whether to use outside counsel or conduct their own internal investigation.

Miklas said obtaining outside counsel presents several advantages:

• First, the “attorney-client” privilege covers the information discovered during the investigation. Therefore, it is confidential.
• Second, using outside counsel removes the perception of bias.

He said that employers can take advantage of another strategy, which is to use the assistance of outside counsel rather than exclusively relying on outside counsel to investigate.

What are the disadvantages of conducting your own bias investigation?

Many employers decide to perform their own internal investigation. Miklas noted that some employers do a great job, and others do not.

The investigation needs to be robust, Miklas said. He said that the initial investigations done by employers are often not formal enough. He added, “you need more than the HR person saying: I talked to Bob and Sally, and this is what they said.”

Employee trust and HR’s comfort level with an investigation can create barriers to an effective investigation. Miklas said many people don’t trust HR, and HR pros might be uncomfortable with certain types of investigations, such as those involving the C-suite.

The level of expertise can also be an issue. Miklas said an inexperienced HR professional should learn how to conduct an internal investigation during an EEOC investigation.

EEOC guidance on conducting discrimination investigations

The EEOC has provided guidance for employers on conducting effective internal workplace investigations. Among other things, employers should:

• Have a system in place for “a prompt, thorough, and impartial investigation into alleged harassment”
• Decide whether a detailed fact-finding investigation is necessary and, if needed, launch one immediately
• Conduct an unbiased investigation
• Make sure that whoever conducts the investigation has training in interviewing witnesses and evaluating their credibility
• Transfer the alleged harasser or change work schedules to prevent contact with the accused and the accuser
• Decide whether harassment occurred. Inform the parties of the determination. If the evidence is inconclusive, employers should “undertake further preventive measures, such as training and monitoring”
• Make clear that “immediate and appropriate corrective action, including discipline,” and remedial action will be taken if harassment has occurred.

Document everything

In addition to honoring the litigation hold on documents, experts strongly recommend that employers under investigation “document everything” because documentation can be crucial in supplying an employer defense.

Documentation must support the reason for the employee’s dismissal. If the employer’s response to the EEOC’s charge is that the employee was terminated for poor job performance, the documentation (such as job evaluations) must demonstrate that the worker was marked down as “poor” or “unsatisfactory” in several areas.

Barry Hartstein, a Chicago attorney and Co-Chair of the EEO & Diversity Practice for Littler Mendelson, P.C., said performance issues and decision-making should be documented.

Miklas noted that when a worker is let go for constant tardiness, employers can support this action with time records. Additionally, he noted that payroll records are essential in payroll disputes, such as allegations of pay inequity.

Documentation often includes digital evidence, but such evidence can have a short shelf life. Electronic evidence tends to disappear, Miklas said. These days evidence comes in via:

• Email
• Texts
• WhatsApp

He said he conducted an investigation where an employer had video surveillance. “Video doesn’t last forever… preserve it before it gets over-written,” Miklas suggested.

However, while documentation is vital in defending against bias claims, it can also destroy an employer’s defense, Miklas said. Evaluations can make an employee who was dismissed for poor job performance look as though “they walk on water.” Sometimes written evidence shows the manager said something illegal, he said.

Jobsite visits

Documentation can also include worksite visits. Miklas recommends that investigators go to the job site.

Miklas said he investigated a worker’s termination of employment. The employee was fired for smoking in a plant where lumber was being cut. “There was sawdust all over the place,” he said. Visiting the worksite made it easy to see why the employer’s “no smoking” policy was important. An EEOC investigator may not appreciate the importance of such a policy until they see the photo of the lumber plant, Miklas pointed out.

Employer’s position statement

After gathering all the facts, the employer will want to create and submit a “position statement.” It’s the company’s official response to the charges. In most cases, the EEOC will ask that the employer submit such a statement.

The EEOC has guidance on position statements.

The employer’s position statement needs to be detailed and talk about the company, Hartstein suggested. Then, specifically, talk about the charge. “Take the view that the agency knows nothing about the company,” he said.

It’s better to use a story format rather than bulleted answers to charge paragraphs. Hartstein recommends the content should not be a legal brief. It should be:

• Authoritative
• Comprehensive
• User-friendly

Miklas said employers should provide evidence of the policies relevant to the charges, such as the employee handbook. Doing so shows the employee was on notice for a reasonable work rule. The employer must submit the relevant portions of the handbook; not the entire handbook, he said.

Position statements are available to the charging party, Hartstein said. As a result, he suggested that employers “be thoughtful in terms of what you lay out.” Particularly since the charging party can submit information to the EEOC challenging any aspect of the employer’s position statement.

EEOC response might take time

A response from the EEOC might take some time. “You submit your position statement, then wait to hear from the EEOC. They get inundated,” Timothy S. Kittle, an attorney with Oklahoma-based law firm Dunlap Bennett & Ludwig, said.

At the end of its investigation, the EEOC decides on the merits of the charge.

Possible outcomes

The EEOC resolves charges via various methods. These include:

• Dismissal
• Mediation
• Conciliation
• Litigation
• Settlement

Dismissal

If the EEOC concludes a violation has not occurred, the person who filed the charge of discrimination will be sent a letter called a “Dismissal and Notice of Rights.” The worker and the employer are informed that the complainant has the right to file a lawsuit in state or federal court.

Mediation

The parties can resolve the charges at any time through mediation or a settlement. The EEOC says mediation can resolve the claim “quickly and confidentially, at no cost.” According to the EEOC, the resolution rate for cases that go to mediation is 65%.

The EEOC invites parties to mediation in most cases, Miklas said. If the charge is eligible for mediation, employers can choose to participate by responding to the invitation for participation in mediation that appears on the “Charge of Discrimination” page. Both parties must agree.

Mediators do not share what happens at mediation proceedings with EEOC investigators.

Miklas said that while the EEOC takes the position that because mediation is free, there’s a good reason to take advantage of this alternative method of dispute resolution. However, it’s important to note that agency mediators “will be upset if the employer doesn’t bring a checkbook.”

Mediators expect the employer to make an offer, he said. Miklas said that if the employer does not intend to make an offer, don’t opt to mediate.

Hartstein said employers should “carefully consider” mediation, particularly if there is a charge of discrimination charge by a current employee. Mediation allows the employer to explore a resolution that may include a separation agreement and can help avoid a retaliation charge when discussing termination under such a circumstance.

Mediation is confidential even inside the agency. Mediators do not share what happens at mediation proceedings with EEOC investigators, Miklas said. It’s a separate unit of the agency, so employers should feel comfortable mediating, Hartstein noted.

Various charges falling outside mediation parameters

Hartstein said the EEOC is closely looking at the charge if they don’t offer an invitation to mediation.

He explained that the EEOC has “A, B or C Charges.”

• “A Charges” mean the employer’s conduct is likely to be found in violation of the law. “A Charges” are given close scrutiny.
• “B Charges” are charges requiring additional information. Most of the charges brought by the EEOC are “B Charges” and are offered mediation.
• “C Charges” are charges that are suitable for dismissal. “C Charges” are quickly thrown out, Hartstein said.

Hartstein said that mediations don’t have to be “face-to-face” and can occur via Zoom.

Deciding to resolve charges through mediation is not an admission of wrongdoing.

Settlement

A settlement is a voluntary resolution that can occur at any time during the EEOC investigation. It is not an admission of wrongdoing.

Conciliation

If the EEOC determines there is reasonable cause to believe discrimination has occurred, both parties are sent a “Letter of Determination.” The letter invites the parties to join the agency in attempting to settle the charge through a voluntary, confidential process called “conciliation.”

Conciliation is generally the final opportunity to resolve the case without litigation.

Litigation

If conciliation fails, the EEOC decides whether to take the employer to court. The federal agency considers several factors, including:

• The severity of the charge
• The legal issues
• The lawsuit’s impact on the agency’s efforts to combat workplace discrimination
• The resources available to litigate the case

Matters rarely end up in court. Hartstein said that only a “very small fraction goes to litigation.” In FY 2021, the agency filed only 124 lawsuits, he said. In FY 2020, the EEOC filed 97 lawsuits.

How long does an EEOC investigation last?

Although investigation times vary, the average time between the filing of the charge and the resolution is about one year.

The bottom line about an EEOC investigation

An EEOC investigation can be costly for employers. It’s best to have policies in place that forbid workplace bias and robust complaint procedures that allow workers to keep things in-house if they have concerns about illegal treatment.

However, should complaints get to the EEOC, employers should cooperate with the agency while presenting a solid defense.