You’ve Got Mail: It’s An EEOC Charge. Now What?

Overview of employer best practices for navigating the EEOC charge process and reaching a resolution

A company’s human resources department works hard to resolve interpersonal conflicts among workers. But sometimes, employees still choose to escalate their grievances by seeking legal action, especially when those complaints involve harassment, discrimination and/or retaliation. 

Before a private employee can sue for most claims of harassment, discrimination and/or retaliation, they must first exhaust their administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). 

The EEOC is the administrative body charged with first evaluating claims under laws, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act. 

This filing of a charge starts a lengthy and often daunting process for the employer. While we always advise employers to consult with legal counsel before engaging in any communication with the EEOC, following the steps outlined below can help a company avoid missteps and position itself to obtain a successful dismissal or resolution with the employee. 

Step 1 – Review the Charge and Access the Respondent Portal

First, understand that the EEOC charge document is often the only source of information available to the employer specifying the employee’s claims. If not already provided, employers should access the EEOC’s Respondent Portal to download a copy of the charge. 

Employers should carefully review this charge document to evaluate the facts alleged; the laws alleged to have been violated; and what information, if any, will be necessary for the company to evaluate the merits of those allegations. At this point, the employer should initiate a prompt investigation into the charge allegations if it has not already done so. 

The Respondent Portal is also the mechanism by which the EEOC communicates important information to the employer. It is imperative that employers and their counsel timely access this portal to obtain information regarding upcoming deadlines and the EEOC’s voluntary mediation process, as well as update contact information so that future communications are not lost in the shuffle. 

Step 2 – Determine Whether to Attempt Early Mediation

The EEOC offers a free, voluntary and confidential mediation program to the employee and employer prior to commencing an investigation. Mediation is an alternative to litigation that involves the parties and/or their counsel meeting with a third-party neutral mediator to seek an early resolution (i.e., a settlement) of the employee’s claims. Mediation may also be a useful tool for gathering additional information about the employee’s claims by using the mediator to facilitate questions. 

Successful mediations will result in a dismissal of the charge via settlement and assurance that the employee will not later file a lawsuit arising from the same facts and allegations. 

If the mediation is unsuccessful, or both parties do not agree to participate, the charge moves to the next phase – an EEOC investigation. 

Step 3 – Participate in the EEOC’s Investigation 

The investigation typically begins with an employer submitting a position statement to the EEOC that sets forth the company’s written response to the charge allegations. The position statement is the employer’s first line of defense, and this step should be taken seriously. An effective position statement should clearly outline the employer’s version of the facts and the application of law to these facts and should reference supporting evidence. Employers should also understand that the position statement will likely become part of the public file, so while the statement must be persuasive, it is equally important to strike the proper tone and refrain from inadvertently disclosing confidential or sensitive business information. 

During this investigation phase, the EEOC also has the authority to request – and even subpoena – certain company records, take witness interviews, and conduct fact-finding conferences. By providing a detailed position statement, an employer can often avoid these time-intensive additional measures. 

However, if the EEOC insists, employers should remain cooperative, thoroughly prepare witnesses prior to any interviews, and take time to review all requested materials prior to any disclosures. If the employer demonstrates a willingness to cooperate, an investigator often will work with the employer to narrow potentially overbroad and burdensome requests. 

Step 4 – The EEOC’s Conclusion

After the investigation concludes, the EEOC will do one of two things: (1) dismiss the charge or (2) find “cause.” For an employer, the ideal choice is for the EEOC to conclude its investigation and issue a dismissal of the charge. Dismissal does not necessarily mean the EEOC believes the employee’s claims have no merit, but it does advance the matter toward conclusion. 

In a case of dismissal, the EEOC would issue the employee a notice of their right to sue, which then starts a 90-day clock for the employee to proceed with filing a lawsuit in federal court. If 90 days lapse without the employee filing, the claims are extinguished. Alternatively, if the employee does file a lawsuit, the matter will proceed in that forum unless settlement discussions resume and succeed. 

The least desirable outcome for an employer is the EEOC’s issuance of a Letter of Determination that reasonable cause exists to believe that, based on the evidence gathered, a violation of the law occurred. But not all is lost; the parties from there are offered the opportunity to engage in conciliation, which – like mediation – is another attempt at settlement. If the parties elect to participate, the EEOC will communicate a settlement offer, and the employer has 14 days to respond. As part of this process, the employer is also entitled to each of the following:
 

• A written summary of known facts relied upon in the reasonable cause finding and the legal basis with explanation of how the law was applied to facts.
• The basis for monetary or other relief (including calculations) underlying the conciliation proposal
• Designation of systemic, class or pattern or practice, as well as the basis for the designation.

With this information, the employer should determine if settlement is desirable or if it wants to proceed to litigation. Importantly, an employer should understand that with a cause finding, the EEOC has the authority to file a lawsuit on the employee’s behalf. 

In that case, conciliation is an employer’s last possible chance at reaching a confidential settlement agreement. If the EEOC executes on its authority to file a lawsuit, the terms of any settlement reached during that pending litigation will be public. If the EEOC declines to litigate on the employee’s behalf, the employee can still file suit within 90 days on their own. 

In that case, an employer could still pursue a confidential settlement or, alternatively, proceed to trial.

As mentioned, there are nuances to successfully handling an EEOC charge, and employers are encouraged to consult with legal counsel each step of the way. By understanding the various paths a charge can take, employers will be better equipped to reach the dismissal stage and avoid a cause finding and costly EEOC litigation. 

Mary Leigh Pirtle is a Member at Bass, Berry & Sims PLC, a law firm based in Nashville, Tennessee. She counsels clients on a wide range of day-to-day employment matters and regularly conducts onsite internal investigations into allegations of employee misconduct. With experience in both traditional labor and employment litigation, she helps employers navigate the range of complicated and evolving employment law issues.

Ashley Li is an Associate at Bass, Berry & Sims PLC in Nashville, Tennessee. She advises clients related to all facets of employment and labor law, including counseling clients in litigation matters related to compliance with state and federal employment law issues involving wage and hour violations and leave-related issues.