Southwest Florida Employment Law Blog : Southwest Florida Employment and Labor Lawyers & Attorneys for Discrimination Lawsuits and Civil Rights Cases in Fort Myers, Bonita Springs & Sanibel FL

Yesterday, the Equal Employment Opportunity Commission announced it received 99,412 private sector workplace discrimination charges during the 2012 fiscal year.  In its  press release , the EEOC noted that while the number of charges is down slightly from last year, it recovered $365.4 million dollars for employees, the "largest amount of monetary recovery" through its administrative process.

(Side note:  I'm not sure how that's the "largest" recovery, if EEOC recovered $404 million in 2010, but then again I'm no math major....).

For the third year in a row, retaliation claims were the most frequently filed claim (38.1%), followed by race (33.7%), sex (30.5%), and disability (26.5%).  There was a jump in sex and disability claims over last year. 

A stat I found particularly interesting is that although the EEOC reduced the pending inventory of charges by 10% from the 2011 fiscal year, it still has over 70,000 cases in queue.  So, for those of you who feel like you've been waiting for-ev-er for a determination, don't worry -- you're clearly not alone!

What does this mean for employers?  Be extra extra careful not to take any action that remotely resembles retaliation!  I know we say this every chance we get, but it's SO important, and these statistics prove it.  Remember, even if the employee does not have a valid underlying claim, he/she can have a valid retaliation claim if take adverse action after you learn of the employee's discrimination or harassment complaint. Don't be a statistic!

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For Part Two of my "EEOC Came Knocking" series (click here for Part One), I thought I'd offer some tips on how to present an effective position statement as part of your response to an EEOC charge.  A solid position statement is critical to the employer's defense of an EEOC charge.  It is the company's opportunity to tell the its side of the story, point out relevant case law, and hopefully convince the EEOC investigatorit didn't discriminate against or harass the charging party.

There are many different ways you can set up a position statement -- there really is no one "right" way to do it.  Sometimes an attorney will prepare the entire position statement.  Other times, HR or another executive will prepare it.  Often, it's combination of the two.  Irrespective of how you choose to do it, this list includes things I believe are important to include in any position statement.

1.  Start with an explicit denial.  This can be just a few sentences, but I recommend starting with a strong opening statement explicitly denying the company discriminated and/or harassed (whatever the charge may be) the charging party.

2.  Don't forget the small details.  Explain the nature of the company's business.  Likewise, explain the charging party's job (job duties, employment history, reporting channels, etc), and how that job fits into the company's bigger picture.  Remember, while you know everything about the company and its business, the EEOC investigator probably has no idea.  These details can be critical to the overall story.

3.  Explain your EEO policies and procedures.  You will likely be asked to produce a copy of your policy manual in the Request for Information, but make sure you take a few sentences in the position statement to explain the policies and how they are enforced.  Explain how employees become aware of the policies and complaint procedures.  Include a copy of the charging party's signed acknowledgement, confirming he/she has received, read, and understood the policy manual.  (Side note:  Don't use acknowledgement forms?  Start immediately!)  If the employee did not follow reporting procedures, make sure to mention that. 

4.  Explain the employment decision.  Identify facts and circumstances that gave rise to the allegedly adverse employment action.  If the charging party was terminated for excessive absenteeism, explain not only the absences, but how the absences affected the company and why they weren't acceptable.  If the charging party has prior disciplinary action, explain it.  Make sure you include all supporting documentation.

5.  Address comparators/similarly situated employees.  If the charging party specifies other employees who were allegedly similarly situated and treated better, discredit that contention.  The standard for "similarly situated" is quite high -- show why the employees are not, in fact, similarly situated with the charging party.  Did the charging party violate a rule three times, while the comparator violated it once?  Has the comparator been successfully employed by the company for 25 years, while the charging party was only employed for one year?  If the situations are dissimilar in any way, make sure you point it out.

6.  Affirmatively show non-discrimination, if possible. For example, in a pregnancy discrimination case, if another female employee has been pregnant, given birth, and successfully returned to work under the same supervisor, reference it.  In an age discrimination case, if you can show that other employees who are the same age or older than the charging party work under the same manager without issue, that needs to go in your position statement.  Though you likely won't be able to do this in every case, when you can, don't miss the opportunity to include what could be a critical part of the employer's defense.

7.  Consider other possible defenses.  You should consider whether you can use defenses such as timeliness, constructive discharge, same actor inference, offers of reinstatement, or after acquired evidence.  This is one area in particular where assistance of counsel is key -- employment lawyers are trained to spot and properly apply these defenses. 

8.  Review other proceedings involving the charging party.  Has the charging party filed a claim for unemployment?  Workers' compensation?  An unfair labor practice claim?  If so, make sure you review as many of those details as you can, and check to see if the charging party has taken inconsistent positions.  If he/she has, include this in the position statement.

9.  Decision-maker review.  Make sure the decision-makers review the charge and confirm the position statement's completeness and accuracy.  Remember, they could be confronted with the details if the case proceeds past the administrative stage and into litigation.

10.  Position statement becomes a public record.  Keep this in mind.  Not only does it become a public record, it is discoverable, and could be used in subsequent litigation.

Bonus.  Counsel review.  This is quite possibly the most important step (of course, coming from the lawyer!).  If you already have counsel preparing the position statement, you are covered here.  If, however, you decide to prepare the position statement yourself, I recommend, at the very least, having counsel review the position statement before it goes out.  Counsel can add strong legal arguments and defenses, and can just generally confirm that the position statement is legally sound before you file it.  Remember, once you file it, you can't get it back!

I hope these tips are helpful for those of you faced with responding to an EEOC charge.  Though the position statement is just one part of the overall response, it is, perhaps, the most critical.  Take care to ensure it is done properly, so you know you're presenting the very best defense possible for your company.

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Last week, I spoke at the Florida Public Human Resources Association's Annual Conference at the Waldorf Astoria in Naples, Florida.  For the first of my two sessions, I was asked to present on EEOC charges which, as you all probably know, is a pretty timely topic given some of the recent record statistics (almost 100,000 charges filed in 2011 alone!).

If your company has not received an EEOC charge recently, consider yourself lucky.  Since I know so many of you have dealt with or will deal with EEOC charges, I thought I would post some tips on how to respond from last week's presentation.  In Part One, I will review the basics of what you should do when you receive the charge.  Next week, in Part Two, I'll offer some tips on how to prepare an effective position statement. 

Side note:  Though the focus of this post is on EEOC charges, the same basics apply to charges filed with the Florida Commission on Human Relations (FCHR).

First up:  The EEOC Came Knocking:  What Should I Do?!

1.  Do not ignore the charge.  Don't laugh -- I have seen this happen!  The charge will not go away if you ignore it.  The EEOC will move on and investigate anyway, with only the employee's side of the story in the file. 

2.  Notify your Employment Practices Liability (EPL) carrier.  This is an extremely important step.  Do this in writing, so you have a record of the notification.  Not sure whether you have EPL coverage (Hint:  it's that coverage with the giant deductible!)?  Call your agent.  Better safe than sorry.

3.  Contact counsel.  While you are not required to have representation at this stage in the process, having the assistance of qualified employment counsel can make a huge difference.  If cost is an issue, prepare the bulk of the response yourself, but make sure you have counsel review it before it is submitted.  There are often critical legal defenses, arguments, etc. that should be raised, and lawyers are trained to spot these items. 

4.  Determine and calendar deadlines.  You will typically have several weeks to submit your response.  If you need additional time to prepare a thorough response, ask for an extension.  The EEOC is usually pretty generous with extensions, as long as the request is reasonable.

5.  Check to see if the charge is timely.  Remember, in Florida, the charge must be filed with the EEOC within 300 days of the alleged discriminatory act.  If the charge is filed with the FCHR, the charging party must file within 365 days.

6.  Notify affected managers/decision-makers.  Identify those managers/decision-makers who were directly involved with the allegations in the charge.  Let them know the company received a charge, and he/she will be called upon for information.  Limit this to those managers/decision-makers who are actually involved -- don't make a company-wide announcement.  See #7 and 9 for additional info on manager/decision-makers.

7.  Assemble and preserve documents.  Gather critical documents, like personnel files for the charging party and any alleged comparators, disciplinary documents, etc.  Make sure you instruct managers, decision-makers, IT personnel, or anyone else who may have relevant documents, including emails, to preserve them -- the last thing you want is to have to explain missing or, worse, destroyed, evidence.

8.  Plan internal investigation.  This could take up an entire blog post in itself.  Perhaps the most important advice I can give you is to do it quickly.  The sooner you investigate, the better, especially if the charge was the first notice you have of the alleged discriminatory action.   Assistance of counsel can be critical during an investigation.

9.  Prevent retaliation.  If the charging party is still employed, make sure he/she is not retaliated against in any way.  Remember, even if the underlying claim of discrimination or harassment has no merit, if you take adverse action against the charging party because he/she has filed a charge, you can hand him/her a valid retaliation claim.  This doesn't mean the employee now has immunity from disciplinary action or even termination, but you should take special care in these situations.  Even if the adverse action was not because of the charge, be mindful that the timing can look pretty suspect.  This is an important reason to be cautious with how many managers/decision-makers you notify about the charge.  Though it's not an iron clad defense, if the charging party's immediate supervisor does not know about the charge (protected activity), the employee may not be able to show a causal connection between the charge and any adverse employment action he/she suffers after filing the charge.  Keeping information limited to those who truly need-to-know is critical, particularly when the charging party is still employed.

10.  Consider mediation.  In most EEOC charges, the EEOC will offer pre-investigation mediation.  Like investigations, this could take up an entire post in itself.  Briefly, there are many pros to mediation.  It can be speedy, cost-effective, and, if settled, gives you certainty with respect to resolution of the charge.  Though not all cases are well-suited for mediation, I tend to recommend it in the majority of charges.  Legal counsel can help you evaluate whether mediation is an attractive option for your particular charge. 

There you have it -- a few basic tips on what to do when you receive an EEOC charge.  Check back next week for tips on how to prepare an effective position statement. 

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