Responding to an EEOC Discrimination Charge: A Guide for Texas Employers (Part I)

Opening mail and finding out that an employee has filed a charge with the Equal Employment Opportunity Commission (EEOC) against your business is as far from a pleasant surprise as it gets. However, it happens to quite a few businesses each year. In 2014, there were 88,778 charges filed with the EEOC, with Texas, Florida and California being the top three states. Overall, the most common claims were retaliation (42.8%), followed by race discrimination (35%) and sex discrimination (29.3%). Thirty percent of all charges included some sort of harassment allegations.

The EEOC Investigation Process

Typically, when an employee files a charge with the EEOC, the agency will notify the employer within 10 days that a charge of discrimination has been filed and will provide the employer with the name and contact information for the investigator assigned to the case.

During the investigation, the assigned EEOC agent will ask the employer and the employee who filed the claim to provide information, which the investigator will evaluate to determine whether unlawful discrimination has taken place. The agent may ask the employer to provide any or all of the following:

• submit a statement of position;
• respond to a Request for Information (RFI);
• request an on-site visit; and/or
• provide contact information for or have employees available for witness interviews

If the charge was not dismissed by the EEOC when it was received, that means there was some basis for proceeding with further investigation. There are many cases where it is unclear whether discrimination may have occurred and an investigation is necessary. Such investigation, thus, presents an opportunity for an employer to state any facts that the employer believes will show the allegations are incorrect or do not amount to a violation of the law.

The Employer’s Role in the Investigation

According to the EEOC, employers should do all of the following to help with the investigation:

• Work with the investigator to identify the most efficient and least burdensome way to gather relevant evidence.
• You should submit a prompt response to the EEOC and provide the information requested, even if you believe the charge is frivolous. If there are extenuating circumstances preventing a timely response from you, contact your investigator to work out a new due date for the information.
• Provide complete and accurate information in response to requests from your investigator.
• The average time it takes to process an EEOC investigation is about 182 days. An undue delay in responding to requests for information extends the time it takes to complete an investigation.
• If you have concerns regarding the scope of the information being sought, advise the investigator. Although EEOC is entitled to all information relevant to the allegations contained in the charge, and has the authority to subpoena such information, in some instances, the information request may be modified.
• Keep relevant documents. If you are unsure whether a document is needed, ask your investigator. By law, you are required to keep certain documents for a set period of time.

The Results of the Investigation

Once the investigator has completed the investigation, the EEOC will make a determination on the merits of the charge.

• If the EEOC determines that there is no reasonable cause to believe that discrimination occurred, it will send the employee a letter called a Dismissal and Notice of Rights that tells the employee that s/he has the right to file a lawsuit in federal court within 90 days from the date of receipt of the letter. The employer will receive a copy of the letter as well.
• If the EEOC determines there is reasonable cause to believe discrimination has occurred, both employer and employee will be issued a Letter of Determination stating that there is reason to believe that discrimination occurred and inviting the parties to join the agency in seeking to resolve the charge, through an informal process known as conciliation.
• Where conciliation fails, the EEOC has the authority to enforce violations of its statutes by filing a lawsuit in federal court. If the EEOC decides not to litigate, the employee will receive a Notice of Right to Sue and may file a lawsuit against the employer in federal court within 90 days.

Leiza Dolghih is the founder of Dolghih Law Group PLLC.  She is board certified in labor and employment law and has 16+ years of experience in commercial and employment litigation, including trade secrets and non-compete disputes. You can contact her directly at leiza@dlg-legal.com or (214) 531-2403.