Tips for Responding to an EEOC Charge

When you receive a charge of discrimination from the EEOC (Equal Employment Opportunity Commission), it is important to take certain steps before responding:

Notify Legal Counsel  – Ensure that legal counsel is immediately notified of the EEOC charge of discrimination.  A charge of discrimination is actually a legal claim against your company so the appropriate defense must be developed.

Collect all relevant documents  – The EEOC will likely request a  host of documents to assist with the investigation.  Collect all written and electronic documentation that may be relevant to the charge to ensure it is not destroyed, including managers notes, write-ups, etc.

Interview relevant witnesses  – Schedule interviews with all employees involved to gather the facts and prepare the response.

Guard against retaliation or the appearance of retaliation – This point is especially important if the charging party is still employed.  Identify an employee, preferably someone in Human Resources, who can review any potential action to be taken against the charging party. In other words, before the charging party is disciplined, transferred, etc, allow HR to conduct a review.

Check for comparator information  – To prove discrimination,  the charging party must show that other similarly situated employees engaged in similar conduct, but were treated differently.  During your initial investigation, you must find these “comparators”, if they exist. If you locate “comparators” then you must show your legitimate, non –discriminatory reason for the different treatment.

Consider Mediation – After investigating the claim, strongly consider mediation. The EEOC mediation is a free resource. Mediation, generally, provides an informal, confidential  opportunity for the parties to resolve any issues between them without having to participate in the discrimination charge investigation or litigation.

Prepare a response to the charge – If mediation is unsuccessful, or you decide against it, then prepare a position statement (response) to the charge.  Be certain to provide all information requested by the investigator and reserve your right to supplement, as necessary.  Highlight your company’s policies against discrimination or harassment and how employees are made aware of the policies.  Allow legal counsel to draft or, at least, review the response before it is submitted.