Company’s Tactics in Response to Unwarranted Title VII Discrimination Claims Filed by Employees (United States)

This Wisdom of the Crowd (ACC member discussion) addresses addresses how companies should respond to Title VII discrimination claims brought by their employees, including whether they should mediate or settle the claim, under US law. This resource was compiled from questions and responses posted on the forum of the Employment & Labor Law and New to In-House ACC Networks.*

*(Permission was received from the ACC members quoted below prior to publishing their forum comments in this Wisdom of the Crowd resource.)

Question:

Recently, an ex-employee filed a Title VII claim against our company. After looking into the matter, the claim is 100% unwarranted. I have never dealt with one of these matters before, and honestly, I am unsure whether it is better to go to the mediation or file a written response. On the one hand, I do not want this issue to become a costly litigation, but on the other hand, paying a settlement for completely unwarranted claims seems unnecessary. How do other smaller companies deal with this, and what is a good plan of action to take through this matter? Also, is it relevant that this claim was filed the moment ex-employee's unemployment checks ended?

Wisdom of the Crowd:

• Response #1: I think the predominant practice is to file the written response. If you have a good defense and present your facts and evidence, more times than not the EEOC (Equal Employment Opportunity Commission) will find no evidence of a violation and close the case. The complainant will get a right-to-sue letter at that point, but if the EEOC did not find a violation, it will be more difficult for him/her to find a lawyer willing to sue. You have almost nothing to lose by submitting the written response.ⁱ

• Response #2: We always file a response and have been largely successful having EEOC dismiss these kinds of cases.ⁱⁱ

• Response #3: My approach to mediation is driven by three factors.

1. Is the person a current employee? If so, I may have a desire to preserve the relationship with the employee, especially when the person was otherwise a good performer. If the person was a poor performer, I may seek a resignation. If the person is a former employee, I prefer not to mediate the case, unless I see some factual concern. In that case, I prefer to submit a response that will get dismissed the vast majority of the time. EEOC will also tell you if the person is represented by counsel, which may give you an idea of whether you have a worthy adversary (who'd presumably only take a good case). Concerns with the facts and/or witnesses. If the facts concern me, I probably want to get that case resolved before the person gets an attorney. Lack of understanding of the facts. I won't call it discovery. But if we simply don't understand what's upsetting the charging party, mediation is a good place to start. Sometimes, I can get enough information to drive a settlement worthwhile. In the other cases, I walk away understanding that my case is as strong as I think it is.

• As others have suggested, if you are filing a response, consider engaging a boutique to help you through the first one. My biggest cautionary note is that keep in mind that whatever you provide to the EEOC is public record. So, it will be shared with the other side, at least verbally, by the investigator to the charging party. If the person has an attorney, the attorney will make a FOIA request (and sometimes they get the info without a FOIA request).ⁱⁱⁱ

• Response #4: I can only assume that this individual was terminated or laid off since you referred to unemployment. I am further assuming that the separation was not part of a larger layoff or a group of terminations that happened about the same time in your company. If so, the analysis gets more complicated and you will need to engage an employment attorney to help you.

• But, if this is one employee being terminated for cause and if you can amply demonstrate, preferably through contemporaneous documentation, that the reasons for the decision were based on legitimate, non-discriminatory business considerations, you have a good chance of getting rid of this without litigation. One of the first things you need to determine is if this was even timely filed. The most the employee would have in a termination situation would be approximately 300 days from the separation date.

• If it does appear to be timely filed (and check because there could be a 180 day limitation in your state), I would use your response to do two things. First, convince the investigator that there was a legitimate non-discriminatory reason for the termination and show what that was. Second, you want to discourage a plaintiff's attorney from picking up the case. So approach your response as if you were defending the action in court. In most cases, unless there are facts or circumstances here that don't seem fair (like a lack of warning or progressive discipline if applicable) or would suggest some reason to question the company's real motives (the reason given for the action does not seem to be the real reason or make sense) or facts that would otherwise inflame a jury (like racist or sexist comments made by the decision maker), a plaintiff's attorney is much less likely to want to pick this up because a majority of these cases seem to be taken on a contingency basis.

• As to mediation, in my experience, if we successfully demonstrated that the company's reasons for the termination were legitimate and not a pretext for discrimination, most often we got a "no cause" determination. A couple of times, it seemed as if the EEOC investigator might have had a quota for bringing cases through mediation, but those were the exception. In those few cases, even though there were no facts to support a finding of discrimination, the investigator would say that they had to get something to close the case. Whether you accede to this will ultimately be up to you, if put in this situation, but if something less than $1,000 is going to make it go away and there is no special concern about precedent setting, this might be the right business call.^iv

• Response #5: My best advice is:

1. Agree to go to the mediation. This will put off the time for you to file your position statement, and will allow you to gather your documents and prepare for your response to the charge. The mediation process will clue you in on whether there are any other facts or allegations that you don't already know about and give you a better opportunity to access whether there is any benefit to settlement, and will allow you an opportunity (maybe) to settle early and cheaply. It may not provide that option, but it's possible. There is no obligation to settle, and little or no downside for you to attend a mediation meeting. Sometimes all the former employee needs is a chance to vent and a representative from the Company in the room to listen. If you are not comfortable filing your own responsive papers (and it sounds like you are not), find a smaller employment law specialty firm in your area that can assist you. Filing a strong set of papers in response to the charge is critical to getting a finding of "no cause" that will make it harder for the plaintiff to find an attorney willing to take the case (if he/she does not already have one), and will lessen the chances that you'll get a lawsuit after the EEOC is done processing it. A good firm will be able to put together a strong response without doing a lot of research and without a high cost -- especially if you provide all the relevant facts. For a relatively small cost, you will put yourself in a much better place and the firm will be positioned well to represent you if you do get into a lawsuit. Don't use your general purpose corporate law firm unless they have a real specialty group, and don't go to a huge national law firm for this unless you are comfortable paying for it (see point #3). No matter how distasteful it may be (and it is), you should be willing to settle the case early for an amount less than what you would spend in legal fees to respond to the charge and to also respond to/defend a subsequent lawsuit if you think that the plaintiff is likely to file suit regardless of the lack of merits. It hurts, but it is good business, so be willing.^v

• Response #6: I would respond to the charge. The vast majority of these claims are dismissed by the relevant agency, and the employee just goes away. You will always have the opportunity at a later time to mediate the claim if you think it is a good idea. If you don't have the ability to do it internally, you can probably get a firm to agree to do it for a relatively small flat fee.^vi

• Response #7: For what it's worth, I don't usually mediate with the EEOC unless I think there is something there and I want to see what evidence they have. I just don't find it to be a particularly neutral forum. Do get a law firm to provide your response, and do ask for a flat fee. If you are a large company, this will surely not be your last charge, and there is incentive for them to provide alternative fees with the understanding they will get the litigation if it happens. Provide the EEOC written response (tip: extensions are usually granted) and then, in my anecdotal experience, it's 50/50 it will go away. If not, settlement is also an option later. No need to settle now when nothing might come of it.^vii

• Response #8: I agree that you should respond. If you need additional time, you should simply request it. I have found that both the EEOC and state agencies regularly grant at least a 30-day extension in which to respond. You should file a position statement that lays out the story from your point of view. In responding to any requests for information, you should answer the ones that are innocuous and that you think are relevant. However, if there are any that are burdensome or otherwise objectionable, I think the best course is to object, but provide some information that you think is relevant (and presumably helpful to your case) so that you are not seen as being uncooperative. If the facts are simple you may be able to get a firm to handle the response and cap the amount of time spent at around 5-10 hours (especially if you do a lot of the legwork for them in gathering and summarizing the information). I don't think you should offer anything to settle if you believe it has no merit. In the unlikely event that the EEOC determines there is merit or the employee sues, there will be additional opportunities down the road to engage in mediation.^viii

• Response #9: You don't mention where the claim is filed (with the EEOC or with your state/city civil rights commission), but one thing to consider is that even if the commission you're responding to does find that the claim has no merit, the complainant still has the right to sue (or take it to the next level at the state/municipal commission). Thus, mediation may be a more cost-effective way to end this now. It may also give you more insight into what "evidence" the claimant has, and could change your evaluation of the merits of the case/assist with your response if the case doesn't settle. The fact that the claimant filed right after unemployment ended may have significance to a judge or jury, but in my experience, carries no weight with a civil rights commission, which is skewed in favor of the claimant.^ix

• Response #10: Personally, I would fight it. In my experience, when the defense is strong enough, the agency does not even encourage mediation. And while [Response #9] is correct that even with a finding of no probable cause the complainant can file a suit, in my experience, it does not happen very often.

• It may be relevant that it was filed as soon as unemployment ended. Check your state's statute of limitations (SOL). I always have to double check SOL but as I recall, a claim has to be filed with the agency within 6 months.^x

• Response #11: File a written response. EEOC and state bodies frequently reject claims that have no merit, and without adverse findings by the agency, plaintiffs have a difficult time getting private lawyers to take the case. You thus stand a good chance of avoiding litigation if the claim has no merit.

• Don't settle frivolous claims. Even if you include a confidentiality provision, word gets out, or people figure things out, and it just invites more claims. Plus you don't want to reward such behavior.^xi