Oh No! … It’s an EEOC Charge! How to Respond Effectively.

HR Women’s Breakfast BriefingJune 11, 2008

Washington, DC

Kara M. Maciel, Esq.

kmaciel@ebglaw.com

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

Handling EEOC Cases

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.

kmaciel@ebglaw.com