Mistake #1: Retaliating against the Charging Party. Probably the worst thing an employer can do when it receives notice that an employee filed an EEOC charge of discrimination, is to fire that employee. However this happens many times. It is human nature to not want to employ someone who is unhappy and claiming that your organization is violating the law. However, if you terminate that employee, it is very likely that the employee will amend their EEOC charge to add a claim of retaliation. Even if the underlying discrimination claim was without merit, your company may have handed the employee a solid retaliation claim, which will cost your company a lot of money and time.
Mistake #2: Retaliating against someone who assisted Charging Party. One type of protected activity is “participation.” This means that an individual is protected from retaliation for having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, the ADEA, the EPA, the ADA, the Rehabilitation Act, or GINA. Participation may include, for example, filing or serving as a witness in an administrative proceeding or lawsuit alleging discrimination. The participation clause applies even if the underlying allegation is not meritorious or was not timely filed.
Mistake #3: Ignoring the EEOC charge. Hoping the EEOC will just go away is not a defense. A Florida business cannot just ignore an EEOC charge. That would risk the EEOC issuing a subpoena and/or issuing an adverse finding. It is much better to defend your organization than to roll over and lose.
Mistake #4: Providing a brief response to the EEOC, with little time or expense. Although you may believe that you did nothing wrong, the EEOC does not assume that this is the case. At the beginning of an EEOC investigation the EEOC starts with a statement where the employee swears that they are telling the truth. The employer has the burden to defend itself so the EEOC can understand how the employee is incorrect and how any adverse employment action that may have been taken, was appropriate and not illegal. Short and sweet is not enough when it comes to convincing the EEOC. It often takes a significant statement, well written and supporting evidence, including documentary and affidavits from individuals. This is an area where it is wise to put serious effort into a response, which takes time, commitment and money.
Mistake #5: Having little or no support in the file for the adverse employment action. While Florida is an employment at will state, this does not mean that the employer can keep no records. Although employers can generally terminate an employee for any reason, there are some exceptions, with the most significant one being that the employer cannot terminate an employee for an illegal reason (based on illegal discrimination or retaliation). If an employer actually terminated an employee for poor performance, it is reasonable to expect that the personnel file will include documentation demonstrating this poor performance. As a lawyer who focuses on defending Florida employers in EEOC charges, I would look for the same thing that the EEOC investigator is looking for: written reprimands, counselings, suspensions, demotions, etc. If the employer is unable to use this type of documentation to support its claim that it had a valid reason for taking adverse employment action, the employer will have an uphill battle defending an EEOC charge of discrimination. Although an experienced labor lawyer may be able to still be successful, it makes it much more challenging to accomplish this goal.
Mistake #6: Inconsistent application of your company rules. This is one of the biggest benefits to having an experienced employment lawyer available to your organization to be able to run a termination by the lawyer before the termination takes place. A dedicated HR professional also can accomplish this task. As an example, if you have two different managers in two different departments and they each respond differently to a set of facts, your Florida company may have some employees being disciplined for something under one manager that would not have generated discipline under the other manager. This is why it is good to have an HR Director or lawyer review discipline, especially terminations before they are taken.
Mistake #7: Having similar allegations from others. Repeat allegations is a sure fire way to get the EEOC’s attention that maybe you are violating the discrimination laws. If your Florida business has received multiple EEOC charges of discrimination, this is not a good sign in the eyes of the EEOC. It is kind of like where there is smoke, there must be fire. Although you cannot always prevent EEOC charges, a Florida company should be training its staff to minimize the likelihood of employees feeling that they are unfairly being disciplined or retaliated against.
Mistake #8: Trying to “wing” a response without using an experienced employment lawyer. If your organization has little experience in responding to EEOC charges, how can you expect to know where the pitfalls and dangers are? Your company may unwittingly turn over a smoking gun piece of evidence that hands the employee a solid claim of discrimination or retaliation against your Florida organization. Responding to EEOC charges are always worth the investment of using an experienced employment law firm to assist your company defend itself.
Mistake #9: Providing the EEOC with everything they are seeking. Sometimes the EEOC asks for too much. If there is a discrete claim of discrimination, there is no reason that the EEOC should be asking for information on other employees. This is a tactic that the EEOC does when it is trying to determine whether there may be an entire group or class of workers who can sue you instead of just one person. You should have the assistance of an experienced labor lawyer on your side to help you navigate this complex area.
Mistake #10: Not involving the company president or highest official in the organization. An EEOC charge of discrimination is something that is serious and can have a significant impact on the company. Complaint procedures and responding to an EEOC charge of discrimination must be adequately funded in the organization's budget and sufficient time must be allocated from employee schedules to ensure appropriate investigations. Similarly, sufficient resources must be allotted to give the organization a solid defense, even if the organization did nothing wrong.
If you would like assistance in responding to an EEOC charge, please email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.
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Included in an EEOC document, the following are some examples of the types of documentary evidence which an employer may submit to support its position statement:
Example 1: Charging Party (CP) alleges sexual harassment: The employer may submit statements or affidavits from witnesses with direct knowledge of the alleged events and/or from the alleged harasser responding to the CP's allegations.
Example 2: Charging Party alleges racial discrimination in pay: The employer may submit payroll records showing that the compensation of all employees in positions comparable to Charging Party, and information regarding their racial category, criteria for setting pay, and how each employee's pay was determined.
Example 3: Charging Party alleges she was fired because of her age (55): The employer may submit personnel records documenting the real reasons for her termination. If the employee was replaced by a significantly younger individual, that will not look good for the employer.
Example 4: Charging Party alleges termination because of pregnancy: The employer may submit documentation showing its reason for terminating CP, which shows that pregnancy had nothing to do with the decision.
What happens at the end of an EEOC investigation?
Once the EEOC investigator has completed the investigation, EEOC will make a determination on the merits of the charge.
If EEOC is unable to conclude that there is reasonable cause to believe that discrimination occurred, the charging party will be issued a notice called a Dismissal and Notice of Rights. This notice informs the charging party that s/he has the right to file a lawsuit in federal court within 90 days from the date of its receipt. The employer will also receive a copy of this notice.
If EEOC determines there is reasonable cause to believe discrimination has occurred, both parties will be issued a Letter of Determination stating that there is reason to believe that discrimination occurred and inviting the parties to settle the charge through the EEOC’s “informal” process known as conciliation. This is basically the time when the EEOC will demand that the employer pay money to charging money and take a lot of other non-monetary actions, all of which will be announced to the world on the EEOC’s webpage. If the employer rejects conciliation or otherwise when conciliation does not succeed in resolving the charge, the EEOC may sue the employer on the employee’s behalf. If the EEOC decides not to litigate, the charging party will receive a Notice of Right to Sue and may file a lawsuit in federal court within 90 days.
As you can see, no matter what the outcome is from the EEOC investigation, the employee always has a “right to sue” and can always sue the employer. Of course, it is always desirable to not have the EEOC in the picture, because the EEOC has ample funding and can spend considerable effort litigating a case that can cost the employer a lot of money to defend.
If you are looking for some nuts and bolts and take-home tips, the next section if for you.
What should I do if I receive an EEOC charge of discrimination: Tips for small businesses in Florida
The following topics will be addressed in this article and each one will have its own heading.
What You Can Expect After a Charge is Filed
When an employee in Florida feels they were treated unfairly, such as a demotion, passed over for a promotion, or a termination, they may file a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). This is fairly simple to do, costs the employee nothing, and creates a significant problem for the Florida employer.
When a charge is filed against your Florida organization, the EEOC is supposed to notify your organization within 10 days. This does not always happen, especially recently, and especially in South Florida. The EEOC is transitioning from a paper process to a digital portal and it is suspected that the EEOC is having problems with this transition. Multiple employers in Florida have never received the notice from the EEOC that a charge was filed, only to be surprised when they are served with a lawsuit.
Assuming the EEOC actually notifies your Florida business or organization, like they are supposed to, then that notification will provide a link for the employer to click on and log into the EEOC's Respondent Portal to see the charge of discrimination. Rather than clicking on that link, you should immediately contact an experienced labor and employment attorney to assist you. This is because, your response period begins the day you click on that link. It is better to bring in your employment lawyer and have them click on the link for you, as this can provide you with a few additional valuable days.
If you are new to the concept of a charge of discrimination, please understand that a charge does not mean that you violated the employment discrimination laws. It does not mean that the EEOC has concluded that you violated the employment discrimination or retaliation statutes. It does not mean that your business or organization engaged in discrimination. It just means that someone (applicant or employee) filed a complaint (or charge) of discrimination, alleging that you discriminated against them. Assuming that the applicant or employee claimed that your business has a certain number of employees (even if that is inaccurate) the EEOC will claim that it has authority to investigate the complaint to determine whether there is reasonable cause to believe discrimination occurred.
Some charges of discrimination are designated for possible mediation, and some are not. If the charge in your case was designated for mediation, then this means that there will be language in the documents you receive from the EEOC that gives your business the option of engaging in mediation in place of providing a bunch of documents and a complete response to the charge of discrimination. Sometimes it makes sense to go to mediation, and sometimes it does not. This is a discussion that you should immediately have with your experienced employment counsel, because if you do not agree to mediation by the deadline, you may lose that option and will be forced to provide a detailed response, along with various documents. Mediation is voluntary and both parties must agree, or else it is not available.
Assuming the employer was not offered the option of mediation, or if either the employer or employee rejected the mediation option, then the only path is an investigation.
During an EEOC investigation in Florida, the employer will be asked to provide information explaining what it did and why it did it. The EEOC investigator will evaluate the information the employer submits and make a recommendation as to whether there is reasonable cause to believe that unlawful discrimination has taken place.
Typically, the business or organization will be required to provide the EEOC with a “statement of position” or “position statement.” This statement of position is the employer’s opportunity to tell its side of the story. The EEOC has an online resource guide on Effective Position Statements, but it is not recommended that employers follow that. That guide does little to assist employers, and its main purpose is to assist the EEOC investigator receive whatever they are requesting with as little challenge as possible.
Also, the employer will usually be required to respond to an EEOC “Request for Information” (RFI). The EEOC’s Request for Information usually is a laundry list of things that the EEOC investigator wants the employer to turn over so the EEOC investigator will have as much information as possible to be able to sue the employer if needed. Often times the RFI is overlybroad and an experienced labor and employment lawyer can help an employer properly respond to an EEOC RFI without turning over too much information, which may be unnecessary. It is typical for an RFI to ask the employer to submit personnel policies, and the Charging Party’s personnel file. While these requests are often appropriate, sometimes the EEOC RFI also seeks the personnel files of other individuals and other information, which may not be relevant to the specific charge filed.
Another tactic that the EEOC may use is to request or demand that the employer permit the EEOC investigator to conduct an on-site visit. The EEOC attempts to sell this to Florida employers, claiming that these site visits greatly expedite the fact- finding process and may help achieve quicker resolutions. In some cases, the EEOC may even try to present an on-site visit as an alternative to a RFI because the requested documents can be made available for viewing or photocopying during the on-site visit. Two of the biggest downsides to on-site visits is that the EEOC investigator typically finds more and more things to dig into when they have easy access to 1) documents and 2) employees. It is common in Florida for an EEOC investigator to use an on-site visit to ask for more documents, different personnel files, and request to interview various employees, because they are already there and the files and individuals are accessible. The EEOC investor will only allow a representative of the organization to be present during interviews with management personnel, but the EEOC investigator is allowed to conduct interviews of non-management level employees without the presence or permission of the organization.
Even if there is not an on-site visit, the EEOC investigation typically requests that the Florida company provide contact information for various employees and former employees. The purpose of this is so the EEOC investigator can interview those witnesses to see whether they will support the claims in the EEOC charge of discrimination.
The next step is putting together the employer’s response to the charge of discrimination.
The following is intended to be the Best Practices for Responding to an EEOC Charge.
How to respond to an EEOC charge of discrimination: 11 steps for success. Practical Tips on Responding to a Discrimination Charge. What is an Effective Position Statement?
The average time it takes the EEOC to investigate and resolve a charge is about 10 months. The EEOC takes the position that this is mainly caused by the employer delaying in responding to requests for information. Employers should realize that it is not always in their interest to quickly provide the EEOC investigator with a lot of documents.
In order to increase the chance that the EEOC does not sue your organization, and also does not conclude that your organization violated the discrimination laws, it is important that Florida employers take adequate time and spend adequate money in presenting their position. This usually involved having their experienced labor attorney draft the position statement, or at least assist the employer in putting a response together. Even if the employer believes that the charge is frivolous and has no merit, the employer should submit a detailed response to the EEOC. Rather than rushing to meet some arbitrary deadline set by the EEOC, if you have extenuating circumstances preventing a timely response from you, it is perfectly acceptable to work out a new due date for the information. This typically happens if a key HR official is on vacation, or if you fail to hire an employment lawyer to assist you in responding.
What is an effective position statement?
Effective Position Statements
What should a position statement include?
It should be a fact-based position statement. This means that your position statement should include specific, factual responses to every allegation of the charge, as well as any other facts which you feel are relevant for the EEOC’s to know. It is typical that the employer’s version of what happened is often very different from what the employee claimed. Your position statement should clearly explain the employer’s version of the facts. As you explain what really happened, the employer’s position statement should identify the specific documents and witnesses supporting the employer’s position. Also, it is useful to have sworn affidavits from these key individuals and provide those affidavits to the EEOC as part of your response. This is an area where you do not want to blow off the allegations and just respond in a couple sentences. Typical EEOC responses can be 10-20 pages, with a lot of supporting documents. This is because a well drafted position statement can limit the EEOC from feeling the need to request additional information.
If a Florida employer only submits a position statement, unsupported by documentary evidence, the EEOC will typically conclude that the employer has no evidence to support its defense to the allegations of the charge.
It may be necessary for an employer to actually identify other individuals other than the Charging Party in order to demonstrate that the employer did not discriminate against the Charging Party. As an example, if the Charging Party is Black and is claiming they were unfairly disciplined for violating a policy because of a protected status (such as race), it may be necessary for the employer to explain to the EEOC that the employer consistently applies this policy to all races, and the employer may desire to list multiple White people who violated the same policy and who received the same punishment. It would usually be helpful for the employer to provide the EEOC with the disciplinary write-ups for those other people (comparators) to support the employer’s position statement. It may also be helpful to demonstrate that the person who took the adverse employment action against the charging party shares charging party’s protected status (such as both are black or male or disabled), as it is unlikely that someone who shares the same protected status would discriminate on that basis.
A position statement that simply denies the allegations without providing your position or supporting information is not sufficient and will usually not achieve the desired result.
You need to understand that the EEOC’s position is that they will turn over your entire position statement to the charging party. The only way to prevent this is to mark certain portions as “confidential” and have the EEOC agree that those portions are actually confidential. When you are trying to have the EEOC consider portions of the documents you submit as confidential, you should segregate the confidential information into separately marked attachments, such as “Sensitive Medical Information,” or “Confidential Commercial or Financial Information,” or “Trade Secret Information.” You will also need to actually provide the EEOC with an explanation justifying the confidential nature of the information contained in the attachments. Just so you know, the EEOC’s position is that medical information about the Charging Party will not be deemed sensitive or confidential medical information in relation to the investigation.
The EEOC is not equal or fair when it comes to sharing information, and it is certainly more employee friendly. This is demonstrated by the fact that the EEOC will not release the Charging Party’s response to the employer.
What are some examples of supporting documentary evidence?
Florida Employers’ Complete Guide for Responding to an EEOC Charge of Discrimination
The first thing you should do is determine whether you already have a person or department capable of handling this matter. Do you have an experienced Human Resources Director who has knowledge about handling EEOC investigations? Many small businesses in Florida do not have a dedicated HR department and not even a Director of Human Resources. What is common to see is one individual who may wear many hats, such as bookkeeper/payroll/benefits/HR. That type of person probably is not the best choice for guiding your business through this important process. It is often necessary to promptly contact an experienced labor and employment lawyer, to assist your Florida company or organization through this process. This is not something that can wait. It is far better to contact the lawyer as soon as possible, because it takes time to craft a powerful EEOC response, and most experienced employment lawyers are busy and will not be able to drop everything and fit you in right then. The lawyer will need to review various documents to be able to begin outlining a response and to be able to discuss whether mediation is appropriate for your situation.
Responding to an EEOC charge: 10 common employer mistakes