Responding to Discrimination Charges (United States)

This Wisdom of the Crowd (ACC member discussion) addresses different response options available when charges of discrimination are brought against a company. This resource was compiled from questions and responses posted on the forum of the Employment & Labor Law ACC Network.*

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

Question:

I was recently speaking to a counterpart at another company who said that he has decided not to submit position statements in response to charges of discrimination anymore. The reasons he gave were:

1. Agencies don't have authority to issue penalties. He is always involved in the discussion and decision to terminate employment anyways, so he knows that nothing illegal happened. He doesn't want to spell out the company's case in a discoverable fashion prior to litigation by submitting a response, exhibits, and affidavits/declarations. He doesn't believe the potential for a cause finding, which he acknowledges is admissible at trial, is really a big deal that would be insurmountable at trial.

So I am wondering - have any of you taken a similar stance? If so, what has been the outcome? Have you received subpoenas from the investigating Agencies? Heave you noticed an increase in cause findings? For those of you who have not taken this approach, what are your thoughts?

Wisdom of the Crowd:

• Response # 1: While the approach does have some appeal, I have not adopted this method. I always respond to these [charges] and it affords an opportunity to evaluate the case critically to decide if we would like to resolve it early in the event there are risks. I find agencies often are helpful in the resolution process so it makes sense to work with them rather than side step their process.

• While the EEOC (Equal Employment Opportunity Commission) does not issue penalties, many state agencies are empowered to do so, (e.g. MCAD - Massachusetts Commission Against Discrimination) and I'd be careful of his approach if you work in a multi-state environment.

• Employment cases almost never actually go to trial and I anticipate that a cause finding would be an issue in resolving a case. If you get it dismissed by the agency in the first instance that may discourage plaintiff attorneys from picking up the case. A cause finding will have the opposite effect, and may also inspire the claimant to demand more to resolve the matter which will impact settlement discussions. As a practical matter, employment cases virtually always settle because of the fee shifting provisions in discrimination statutes. It is very often the case that as you near trial the defense costs and the potential fee award to plaintiff will outweigh any compensatory damages to the extent you simply have to resolve the matter regardless of the merits.

• As to the discovery question - I typically do not create affidavits or other evidence but I don't mind sharing what is in the file, particularly if it is helpful. Bear in mind they will eventually get it during discovery if the matter proceeds. I dislike the amount of money spent on discovery in litigation and prefer to shortcut the process. Moreover, if the information is dispositive of the matter it makes sense to get it out in the open. Conversely if you have some risk you should be looking at how to position the matter for resolution sooner than later anyway. You can do that through the agency prior to divulging everything if you choose that approach.ⁱ

• Response #2: We always respond to charges. In addition to the reasons stated by [Response #1] and others here, this is an opportunity to challenge the timeliness of the claims as well as to educate opposing counsel (when there is one involved) about the facts and weaknesses of the claimant's case. Often, claimant's counsel has been given half-baked facts by the claimant, so a position statement can be a reality check. Finally, if you have EPLI insurance (Employment Practices Liability Insurance), you may want to review your policy and check with your carrier as they may insist that a position statement be submitted in order to receive coverage.ⁱⁱ

• Response #3: While there are certainly risks involved in submitting a response to a charge, I believe the administrative presentment stage is a good opportunity for an in house team to create cost savings, so long as the matter is handled competently. A dismissed charge increases the chance the matter won't proceed to litigation, which can result in sizeable savings. To my mind, the issue is more about making sure you have total confidence in any materials you do submit. A concise position statement, which has been well vetted, allows you to be responsive to the agency while also putting you in a position to read and react to the agency's view of your statement. Our experience has been that some local offices have agendas you cannot control, but most are receptive to a well-drafted position statement.ⁱⁱⁱ

• Response #4: To be honest, I've never heard of an employer not responding to a charge. Regardless of what the EEOC (Equal Employment Opportunity Commission) or state agency asks for initially, I provide a position statement with the information I want them to have. Sometimes the EEOC or state agency will then ask for more information, but usually not.

• Also, for what it's worth, I include the following "disclaimer":

• The information provided herein and in the attached documents is to be used only for purposes of this matter and does not constitute a waiver of any facts or defenses that [EMPLOYER] may have but does not raise in this submission. Neither this position statement nor the documents submitted herewith are to be used as evidence in any other proceeding, and any assumptions made herein should not apply to any other proceeding. Further, the information and documents we have provided, as well as the contents of this letter to the extent it identifies persons who provided information, should be protected from disclosure under the provisions of the Equal Employment Opportunity Commission Compliance Manual at § 83.6(b)(1) and the codified exception to the disclosure requirements of the Freedom of Information Act at 5 U.S.C. § 552(b)(7), and any applicable state equivalent.^iv

• Response #5: We generally provide a position statement when requested. It gives the employer an opportunity to raise jurisdiction issues as well as to provide documentation, which can lead to a dismissal of the charge. We also include a "disclaimer" similar to the one [Response #4] provided.

• If the agency has an agenda, you will probably know about it sooner rather than later.^v

• Response #6: We respond to every charge that comes in, but we usually handle the response internally to minimize costs.^vi

• Response #7: I think something that is being missed here is that, by not responding to the charge, you risk raising your visibility on the EEOC's (Equal Employment Opportunity Commission) radar to a high red flag level. While they may not be able to assess any penalties, they could decide to conduct a full scale proctology exam of your operations at one or more of your facilities, including interviewing your employees, which can be very disrupting and very costly to handle. And while they may not find any evidence directly relative to the charge, they could find evidence of other violations on which they could file suit themselves, or refer to other Federal agencies such as the DOJ or IRS. And as we all know, with the practically unlimited resources of the Federal government, they can make your life a living hell, whether or not they ever actually manage to get enough for a Cause finding, or a judgment if they file suit. So I think, in addition to the other reasons everyone else has mentioned, its always good practice to file a Position Statement, and to at least appear like you're being as cooperative as possible under the circumstances.^vii

• Response #8: One thing that should be kept in mind is that the EEOC (Equal Employment Opportunity Commission) could subpoena records, even at the investigative stage. Not sure if they compel deposition testimony at such an early stage (OSHA [Occupational Safety and Health Administration] certainly can). So, why antagonize them needlessly when there are plenty of good reasons to respond, as identified by the other responses?^viii

• Response #9: I agree with [Response #7]. I see no advantage in painting a target on my organization by not responding. Position statements aren't that much trouble to produce, assuming that a company has as a starting point, a healthy culture where issues can be raised at early stages, and where there are good internal investigative resources/training/processes. The occasions of charging parties actually exercising the right to sue upon dismissal of the complaint is almost non-existent, partially because he/she recognizes there has been an airing of the grievances to an impartial government body.^ix