By Nathan D. Anderson
Charges of discrimination are daunting for small businesses. This article will help you and your small business better understand employee discrimination charges and some good, initial steps you can take in response.
What is a Charge of Discrimination?
Before employees can sue their employers for discrimination, they must file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) or a similar state agency. In Utah, that agency is called the Utah Antidiscrimination and Labor Division or “UALD.” The employees’ discrimination charge will state the type of discrimination alleged (such as race, sex, color, age, retaliation, etc.) and should provide details of the alleged discrimination (such as when it allegedly occurred, who was allegedly involved, etc.). When the EEOC or UALD receive charges, they will investigate. Often, one of the first steps in that investigation is to send the charge of discrimination to the employer and request a written response called a “position statement.”
Critical First Steps
When you receive the charge from the EEOC or UALD you should take the following, immediate steps:
- Review the Charge Carefully. The employee’s charge should be accompanied by a cover letter from the UALD or EEOC, which should state whether an investigator has been assigned, request a position statement, request additional documents, discuss possible mediation, and provide deadlines. Review all the information carefully and take notice of the following:
- Make sure the charge is complete and signed by the employee.
- Identify what the specific charge is (e.g., race, sex, color, age, retaliation, etc.).
- Check to see if an investigator has been assigned and (if one has) make note of their contact information.
- Make note of all deadlines for your response, calendar and track them.
- Check to see if the charge is timely. If the charge is filed more than 180 days after the last alleged discriminatory event (or 300 days in states with FEPA or state deferral agencies), then the charge may be time barred. If it is not timely, the charge may be subject to dismissal.
- Designate an Investigator. Choose one person to handle the investigation. The person must be neutral, with strong interpersonal skills, attention to detail, the right temperament to handle interviews, and the ability to maintain confidentiality. This person could be a member of you HR staff, legal counsel, or a third-party investigator; each of these have pros and cons. Whoever is selected should handle all communications and investigative actions.
- Keep things Confidential. Limit sharing information about the charge to those who truly need to know. Supervisors, managers, and other need-to-know individuals should be admonished not to share or discuss the charge with anyone except the person responsible for investigating.
- Review your No Retaliation Policy. If the employee filing the charge is still employed, you should contact the employee and his supervisor or manager to remind them of your no retaliation policy. Make sure to document this conversation in accordance with your company’s policies. Be careful, if you terminate, harass, or take seemingly minor adverse actions against them for reporting discrimination, you may have given the employee a valid retaliation claim even if their initial discrimination had no merit.
- Contact the Investigator. If an investigator has been assigned (which is not always the case), give them a call and introduce yourself. Be friendly. If you need more time to respond to the allegations, ask the investigator for an extension. Thirty-day extensions are often granted and provide more time for a thorough investigation. If the extension is granted, follow up with an email confirming the extension in writing. It may also be appropriate to ask for additional information such as whether the employee is represented by an attorney or if there is other information or specifics related to the charge. Do not argue your case. This is not the time to convince the investigator that you’re right and the employee is wrong. Only the person responsible for the investigation should contact the investigator; there should be just one point of contact. Others should refrain from speaking with the investigator and refer the investigator to the employer’s representative.
- Retain documents. Consider making sure that any relevant documents are retained. If you have a document retention policy that regularly purges certain documents, make sure to communicate that all documents related to the employee are to be retained.
The above steps should be taken immediately. Don’t wait. Once you have taken these steps, you should be ready to start investigating the discrimination charge and drafting your position statement. Both of which I address in separate articles.
If you have any questions about a discrimination charge, this article, or anything employment related, please call, or send me an email. My direct line is 801-365-1024 and my email is [email protected]. I am dedicated to working with small business to help handle their legal problems at affordable rates. I offer a free initial consultation and am happy to help in any way I can.