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Oh No! … It’s an EEOC Charge! How to Respond Effectively.
HR Women’s Breakfast BriefingJune 11, 2008
Washington, DC
Kara M. Maciel, Esq.
Trend In Rise of EEOC Claims
• In 2007 – 82,792 EEO Charges filed (almost 10% increase from 2006)
• 37% Race
• 30.1% Gender
• 23.2% Age
• 21.4% Disability
• 3.5% Religion
• 32.3% Claims Included Retaliation
Source: EEOC www.eeoc.gov/stats
Trend Over Last 10 Years
• Race, Sex claims have remained at or around same levels over the last 10 years
• Growth has occurred in the number of Religion, Age, and National Origin claims
• Retaliation has seen the largest increase in claims
Source: EEOC www.eeoc.gov/stats
Hot Issues for 2008
CARE GIVER RESPONSIBILITY
– New Guidelines issued by EEOC on Care Giver Responsibility Discrimination in 2007
– Increased rise in pregnancy / maternity leave discrimination
Care Giver Responsibility
• What is Care Giver Responsibility Discrimination?– Plaintiff alleges that the employer
discriminated against him/her based on the employee’s care giving responsibilities
– Currently no Federal law addresses Care Giver Responsibilities
– Suits mainly brought under Title VII/Gender Discrimination, Pregnancy Discrimination Act, ADA, or FMLA
– 48 of 50 states and District of Columbia have seen such cases litigated in their courts
Statistics and Figures
• 92% of Care Giver Responsibility cases are filed by women
• 62% of these plaintiffs are blue collar non-professional workers
• Care Giver Responsibility plaintiffs obtain a judgment 50% of the time, compared with a 20% rate of success for discrimination cases overall
• 54% of such cases result in judgments of $100,000 or more
• Currently about 100 Care Giver Responsibility cases are pending in the U.S.
Source:
http://www.uchastings.edu/site_files/WLLDreport.pdf
EEOC — Federal Laws Covered
• Title VII (race, color, national origin, gender and religion)– DCHRA (family responsibility, marital
status, political affiliation, etc.)
• ADA (disability)
• ADEA (age)
• Individual Claims vs. Class Claims
• Disparate Treatment vs.Disparate Impact
EEOC — Charge
• A charge can be filed by any person or organization claiming to be aggrieved
• Any one person on behalf of a class
• A member of the EEOC
Statutes of Limitations
• EEOC Charge — 180 days or 300 days if claims are dual filed with DC Office of Human Rights;
• Court Complaint — 90 days after right to sue letter issued by EEOC
• DCHRA – Employee can bypass administrative procedures and pursue claims directly in D.C. Superior court
EEOC — Responding to Charge
Only Conducts Investigations(no hearings or trials)
• Do not ignore the charge– Notify your EPLI carrier
– Notify key players to preserve documents
• Is the charge timely? – Clock begins to run when charging party is given
notice of the alleged discriminatory act
• Assess whether it is wise to pursue settlement or mediation
• Plan internal investigation and ensure no retaliatory action is taken
• Prepare position statement
General Mediation Program
• Assess whether to participate in Mediation – Cost effective as no position statement required
– Does the charge contain allegations that are a “hot topic” for the EEOC?
– Does disclosure of witnesses or company documents weigh in favor of early resolution?
• Neutral Mediator not Investigator Mediates– Sometimes its best to resolve the case before it
gets in front of the investigator
• Confidential
• Not an Admission of Wrongdoing
• Universal Agreements to Mediate – New mechanism to mediate all charges with EEOC
Employer Internal Investigation
• Immediately begin your internal investigation
– Review Documents
– Interview Witnesses• Ensure no retaliation
– Draft Position Statement
Review Documents
• Personnel files (for the charging party, supervisors, decision-makers, and similarly-situated employees);
• Personnel policies and procedures (and signed acknowledgments of receipts of the charging party);
• Grievance files, written disciplinary warnings, and internal complaints;
Review Documents (Cont’d)
• Supervisor’s Files;
• Medical Files (if applicable);
• Statistical Analyses; and
• Other documentation relevant to the case.
Interview Witnesses
• Interview witnesses with relevant information: decision-makers, management, non-management, and HR personnel
• Maintain confidentiality of investigation
Position Statement (Purpose)
• Gives context to the Charging Party’s allegations
• Tells a story – make it easy to read and follow
• Gives explanation for employer’s actions (with supporting documentation)
• **Free discovery for employee’s lawyer**
The Position Statement (Statement of Facts)
• Give context– Department Background
– Job Duties
• Quote Applicable Policies & Procedures
• Tell a Story– Introduce key players/decision makers
– Discuss employee’s problems or issues
– Explain reasons for disciplinary action
– Explain why action was lawful
The Position Statement (Cont’d)
• Your Review
• Review with decision-makers and key witnesses
• Reminder — EEOC will likely share information with employee
• Admissible evidence at trial
– Changing positions later will hurt you at trial
EEOC — Request for Documents
• EEOC’s subpoena power
• Be familiar with all documents
• Determine applicable documents to submit
– Perhaps limit information to employees working for the same supervisor
– Depends on scope of charge (individual vs. class)
• Show and Explain Bad Documents
On-Site Investigations
• EEOC needs permission or subpoena– Counsel should participate in all
management interviews
• Prepare witnesses as if for deposition
• Conduct a pre-visit of your own (confirm posted notices, etc.)
• Attend on-site investigation
• Interact with the investigator
EEOC Determinations
• No Reasonable Cause
– Notice of Right to Sue
• Reasonable Cause
– EEOC May Bring Suit in its Name
Reasonable Cause
• Challenge determination by requesting EEOC Reconsideration
• Conciliation – agree or not agree to conciliate?
– EEOC is usually looking for all available remedies
Oh No! … It’s an EEOC Charge! How to Respond Effectively.
HR Women’s Breakfast Briefing June 11, 2008
Washington, DC
Kara M. Maciel, Esq.