The U.S. Equal Employment Opportunity Commission (EEOC) enforces the nation’s civil rights employment laws by investigating charges of discrimination, mediating disputes, and suing employers, unions, and other entities. Companies should, of course, do their best to adhere to the law, but even companies with good practices may have charges brought against them. Businesses, therefore, need to understand how the EEOC’s enforcement process works so that they can respond appropriately should they become the subject of an investigation by the agency.
EEOC investigations typically begin when an employee files a charge of discrimination. The person who files a charge is called the charging party and the accused is the respondent. Because the EEOC has limited resources, it investigates only a small percentage of the charges filed.
The agency categorizes each charge as an “A,” “B,” or “C” charge. “A” charges are those deemed most likely to result in a finding that a violation occurred. “B” charges are those that initially appear to have some merit but require additional evidence to determine whether continued investigation will produce evidence of unlawful conduct. “C” charges are those that lack evidence to back the claims and are viewed as least likely to result in a finding of unlawful conduct. “A” charges receive priority. The EEOC investigates “B” charges as resources permit, and the commission dismisses “C” charges.
Two statutes, the Civil Rights Act of 1964 (specifically Title VII) and the Americans with Disabilities Act (ADA), prohibit the EEOC from conducting an investigation unless someone files a charge. Two other statutes, the Equal Pay Act and the Age Discrimination in Employment Act, authorize the EEOC to initiate an investigation on its own authority when it suspects that these laws are being violated; in those cases, the agency does not need to wait until someone files a charge. Such inquiries are known as directed investigations. Once the EEOC launches an investigation, the respondent can either go to mediation or respond to the charges.
EEOC mediation is voluntary and confidential and can provide the respondent with an opportunity to resolve a charge quickly. The EEOC frequently offers mediation shortly after it receives a charge. Mediators play no role in the investigation of a charge. If mediation of a particular charge does not result in a resolution, the mediator returns the charge to the enforcement unit, which may investigate it.
Mediation takes time, but there is usually no other cost to mediation, and there are many benefits, such as avoiding the expense of litigation. During mediation, respondents will have the opportunity to better understand the charging party’s claims and to assess whether a resolution makes sense.
Mediation also enables respondents to learn how the EEOC views the charge. The EEOC does not normally permit mediation of “A” charges. If the EEOC extends an invitation to mediate a charge, then withdraws the invitation after the respondent accepts, the respondent can surmise that the agency probably views the matter as an “A” charge and, therefore, worth an investigation.
Companies may want to ask the EEOC about entering into a universal agreement to mediate (UAM). A UAM is an agreement with the EEOC to mediate all eligible charges, prior to an agency investigation or litigation. A UAM demonstrates to the EEOC that a company is willing to mediate charges, something the agency generally views favorably. Moreover, a UAM establishes a point of contact, and this helps to expedite the flow of information about any case between the EEOC and the respondent.
The UAM does not bind the parties to mediation in all cases. The respondent or the charging party may opt out of mediation in a particular case, even though a UAM is in effect.
If the respondent faces an “A” charge, the EEOC will notify the respondent of the charge. If the company declined mediation when it was notified of a “B” charge, the EEOC will notify the respondent that the charges are being pursued. The EEOC is required to provide respondents with notice of any charge that names them. Unless the parties agree to mediate the dispute, the agency will usually also ask the company to respond to a request for information (RFI).
The RFI usually contains a set of questions and asks for documents. If the RFI contains highly specific questions and requests, that’s an indication that the EEOC may deem the charge to be an “A” charge, and the respondent should prepare for a full-blown investigation. If, however, the RFI appears to be a boilerplate form, with no specific questions about the respondent, the charge is more likely a “B” charge.
At this point, the respondent or its counsel should try to establish a positive working relationship with the investigator. If a respondent can develop a good relationship with the investigator, the respondent will have better opportunities later to negotiate about such topics as the scope of document production, witness interviews, and even advance warnings about a determination that a violation occurred (known at the EEOC as a cause finding). A relationship can be established initially by picking up the telephone, calling the investigator, and beginning a dialogue about the charge and the company’s response to the RFI.
A good relationship with the investigator can also help if the EEOC decides to conduct an on-site investigation. This is when the EEOC investigators visit the respondent’s place of business, inspect the place, and interview witnesses. Because on-site investigations can disrupt a respondent’s business, respondents can and should discuss with the investigator such topics as the location, sequence, and duration of the visit.
In preparing their response, companies should address the following components: an internal investigation, a position statement, EEOC document and interview requests, and subpoenas. Companies should be careful to avoid pitfalls during the investigation, such as adopting an antagonistic attitude or retaliating against an employee. Management should implement protocols for preventing routine destruction of documents that could relate to the case and proactively take steps to retain all documents and other information relevant to the charge.
Internal investigation. A respondent should conduct its own investigation as soon as possible after it receives notice of a charge. This usually can be done by identifying and assembling the relevant documents and interviewing those who knew the charging party or participated in the challenged employment decision.
If the charges allege a systemic problem, it may make sense to hire a subject-matter expert to help with the internal investigation. For example, if the EEOC is alleging that the company paid female employees less than men doing equivalent jobs, the company would be prudent to retain a labor economist to assess whether the company has a statistically significant pay disparity that could be viewed as evidence of sex discrimination.
If the investigation is performed by a lawyer, or an agent of a lawyer, for the purpose of providing legal advice and in anticipation of litigation, the respondent can shield the attorney’s work and communications from discovery by the EEOC. Most EEOC investigators are not lawyers, but they understand that respondents retain counsel and that attorney communications and attorney work products are protected from disclosure.
The attorney-client privilege can be particularly helpful when a respondent retains an expert to provide analysis and advice about matters under investigation. If the expert works through counsel, the respondent can decide whether to waive the privilege and produce any analysis performed by the expert, retain a different expert, or assert privilege and keep the expert’s work from the EEOC.
Position statement. Once a company has completed its internal investigation, it should prepare a position statement describing its view of what happened and why. This statement, which is part of the RFI, must be accurate and defensible. The EEOC may present the position statement to the charging party and ask for a response.
Position statements may be used against a respondent in any stage of the investigative process or in any subsequent litigation. If a respondent’s position in any future litigation differs from the position statement submitted during an EEOC investigation, the EEOC or a plaintiff’s lawyer may assert that any changes are evidence of a respondent’s shifting attempts to cover up unlawful conduct.
This is not just a hypothetical. In a case before the U.S. Supreme Court (Raytheon v. Hernandez, U.S. Supreme Court, 2003), a former drug addict, Joel Hernandez, worked for Hughes Missile System and lost his job when he tested positive for cocaine. More than two years later, he applied to be rehired, but Joanne Bockmiller, an employee in the company’s labor relations department, rejected his application.
Bockmiller later explained that she did not know that Hernandez was a former drug addict. Instead, Bockmiller said, she did not rehire Herndandez because the company had an unwritten policy against rehiring employees who were discharged for any workplace misconduct.
Hernandez filed a charge with the EEOC and claimed that the company violated the ADA when it refused to rehire him, because his record of drug addiction brought him within the law’s protections.
The company submitted a position statement to the EEOC in which it asserted that the company knew about Hernandez’s “demonstrated drug use while previously employed” and that this was part of the reason the company rejected his application. This contradicted Bockmiller’s statements, and the Court sent the case back to the lower court to decide whether Hernandez could prove that the disparity in the statements was a pretext for discrimination.
The Raytheon case illustrates how important it is that position statements plainly and accurately describe the facts. Effective position statements also apply the EEOC’s standards to the facts.
Statements should not rely heavily on case law precedent, unless the EEOC’s guidance is silent about a particular issue. Decisions by courts other than the U.S. Supreme Court do not impress the EEOC. Rather, a position statement will be convincing only if it cites and applies EEOC’s regulations and subregulatory guidance. (The EEOC’s Web site contains many of these standards. Link to them and other employment law resources via www.securitymanagement.com)
Finally, if the charge involves allegations of systemic legal violations, respondents may later submit additional information, such as statistical analyses, that may not be available when the respondent submits its position statement.
Evidence gathering. The EEOC normally asks respondents to produce documents that contain information relevant to the charge. The EEOC may also request that a respondent make witnesses available for interviews.
The EEOC usually permits a respondent to have counsel present for interviews of management-level employees but not for nonmanagement employees. Because the EEOC will respect the attorney- client privilege during investigations, it usually helps to have a witness prepared for an EEOC interview in the same way that a lawyer may prepare a witness for a deposition or a trial.
The EEOC may request contact information about employees. Such a request normally signals that the investigator plans to interview those persons away from the workplace or to send a survey to individuals whom the EEOC believes may have relevant information.
If a respondent believes that the EEOC’s demands are too burdensome or improper, the respondent or its representative should try to negotiate with the investigator about narrowing what is to be provided. The agency’s investigators will usually engage in a dialogue with a respondent about the production of documents, witnesses, and other information. There is no disadvantage in trying to persuade the EEOC to limit its original requests, especially when the investigator and the respondent’s representative have a positive working relationship.
Document retention. EEOC regulations require that respondents retain documents that may be relevant to the charge. Depending on the scope of the charge, relevant records may include documents about the charging party, personnel and employment records, information on other allegedly aggrieved persons, and data on other similarly situated applicants or employees.
The documents must be kept until the administrative disposition of the charge or until the time for filing a lawsuit based on the charge has passed as discussed ahead. If a lawsuit is filed, of course, the documents must be retained throughout the legal process.
If there is no settlement of a charge during the administrative process, such as during mediation, the EEOC may issue a right-to-sue letter to the charging party. Once the right-to-sue letter is issued, the charging party has 90 days to file a lawsuit.
The respondent must keep documents about the charge during this 90-day window for most claims. For Equal Pay Act claims, a three-year statute of limitations exists for willful violations, so respondents should preserve documents related to any such claim for at least three years.
If relevant documents are missing, the EEOC may infer that the missing documents contained information that is harmful to the respondent and helpful to the charging party.
Subpoenas. The EEOC has the authority to issue administrative subpoenas that require production of documents and other information during investigations. If the EEOC issues a subpoena, the investigation is not going well for the respondent. This is because EEOC issues subpoenas only when it has committed resources to the investigation and when it believes that the respondent has relevant and potentially incriminating information that it is withholding.
Title VII and the ADA authorize respondents to file a petition to revoke or modify a subpoena. The commissioners and their staffs review any such petitions, and they may grant them. But respondents should realize that a petition to revoke or modify a subpoena will antagonize the EEOC field office that issued the subpoena, and if the petition is unsuccessful, the field office may demand even more information.
If a respondent does not comply with a subpoena, the EEOC will usually sue the respondent and ask a court to enforce the subpoena. The federal courts generally grant enforcement of EEOC subpoenas, and a subpoena enforcement action will make public what is an otherwise confidential investigation.
Before a respondent decides to resist a subpoena, it should consider the potential publicity that will accompany any subpoena enforcement action. The EEOC may issue one or more press releases about such an action. The media may report about the case, and interested individuals may learn about the investigation and come to the EEOC with information about the respondent.
For example, in one large case involving several employees, the respondent decided not to produce information sought by the EEOC during an investigation. The commission issued a subpoena. The respondent declined to comply with the subpoena.
The commission brought a subpoena enforcement action and issued a press release. Major newspapers and other media outlets published stories about the case. Various former employees of the respondent read the stories, contacted the EEOC, and provided information about the respondent that formed the basis of the EEOC’s subsequent lawsuit. The commission ultimately obtained substantial enforcement of the subpoena, but the information garnered as a result of the news stories clinched the case, which eventually was settled for several million dollars.
This example should serve as a warning to any respondent that resisting an EEOC subpoena usually backfires.
Political fixes. The EEOC is headed by political appointees. A chairperson, four other commissioners, and a general counsel are appointed by the President with the advice and consent of the U.S. Senate. Only the chairperson has authority over ongoing investigations.
The general counsel has authority over the conduct of litigation, but he or she will usually not get involved in most investigations. Generally, neither the chairperson nor the general counsel is eager to risk a political controversy by jumping into field investigations and litigation.
They will consider direct appeals to them for intervention, but these appeals should be pursued only in the most significant matters after all efforts with the field office have failed. Also, commissioners other than the chairperson have no operational authority, so appealing to them does no good and may do some harm because it will antagonize field personnel.
Avoid aggressiveness. Respondents and attorneys should avoid “scorched earth” strategies. Such tactics almost never work, and respondents that engage in overly aggressive resistance to EEOC investigations quickly develop a negative reputation at the commission.
It is helpful to think of the EEOC as a small town where everyone knows everyone else’s business. For example, if EEOC investigators view a respondent negatively in the Chicago office, EEOC offices around the nation may develop the same view, especially given the pervasive and prompt use of e-mail by EEOC personnel. This usually has no positive consequences for a respondent, especially if the respondent is a national employer.
Of course, there are appropriate times to resist EEOC demands, but those occasions should be carefully considered in light of problems that can occur when the EEOC comes to view a respondent as an antagonistic party.
Retaliation. The EEOC takes retaliation for participating in EEOC investigations and processes very seriously. Respondents should be careful to avoid even a hint of any retaliation during an investigation and should know that EEOC considers retaliation cases as one of its litigation priorities.
Again, a good relationship with the investigator can help build trust. It is important that the investigator know that the respondent is participating in the investigation in good faith to avoid even the appearance of any retaliation.
Even if mediation fails to resolve a charge and the EEOC conducts an investigation, the respondent still has opportunities for resolving the issue. Once an investigation begins, the EEOC will consider resolving a charge through a predetermined settlement, conciliation after a cause finding, or during litigation.
Settlement. Predetermination settlements occur when the EEOC, the charging party, and the respondent agree to resolve a matter after an investigation begins and before the EEOC issues a determination. When, during an investigation, a respondent believes that the EEOC is going to issue a cause finding, the respondent may request that the EEOC consider a resolution prior to a complete investigation and determination. This can be done by talking with the investigator.
The investigator will likely check with his or her supervisor. The EEOC may or may not agree to settle the matter prior to issuing a cause finding, but there is no harm in seeking to resolve the charge by this manner. There can be some benefit, because a predetermination settlement may end the matter.
Conciliation. If after completing its investigation, the EEOC determines that no violation occurred, the agency will dismiss the charge. But if the EEOC determines that a violation occurred, the agency will issue a cause finding in the form of a “letter of determination.”
The EEOC will then invite the parties to resolve the case through conciliation. From the EEOC’s perspective, the purpose of conciliation is to resolve the violation, not reargue its merits. The EEOC generally will not consider arguments that the cause finding is wrong. While requests for reconsideration of cause findings are permissible, they almost never succeed.
Conciliation agreements are confidential unless the parties consent to making them public. Conciliation agreements typically detail both monetary and nonmonetary relief, if any, and the duration of the agreement. Conciliation agreements also usually include a description of a release to be signed by the charging party, a statement that the EEOC and the charging party can sue to enforce the agreement if the respondent does not comply, and a statement that the respondent does not admit any wrongdoing.
Litigation. If the EEOC issues a right-to-sue letter, it will no longer have any involvement with the case. The agency itself may, however, decide to file a lawsuit against the respondent after it investigates a charge, issues a cause finding, and declares conciliation a failure. In that case, the enforcement unit will forward the file to EEOC’s legal units for litigation.
EEOC’s Regional Attorneys’ Manual, available at the EEOC Web site, describes EEOC’s litigation process and practices. Any lawyer who represents a party in litigation against the EEOC should become familiar with it.
Settlement. The EEOC normally resolves litigation by means of a consent decree, or a similar document, that the parties file with the court. The EEOC does this because a consent decree enables the EEOC to seek judicial enforcement of any resolution of a lawsuit.
The consent decree typically includes a description of the various forms of relief including policy changes, money paid to claimants, record retention, and reporting.
Individual relief can be conditioned upon a waiver of those claims asserted in the commission’s complaint. If a private lawyer represents a claimant, the EEOC will permit the claimant to sign a waiver that includes other claims such as violations of state law.
The EEOC will not agree to confidential resolutions of commission litigation. Instead, the EEOC requires public disclosure of all settlement terms, and it will oppose the sealing of resolution documents. In class cases, however, the EEOC may agree to seal the specific relief provided to each claimant.
The EEOC seeks public resolutions of its litigated matters because it supports open government principles and to encourage respondents to resolve matters confidentially during the conciliation process. The EEOC cares about the conciliation process, because it generates remedies for violations. Additionally, the EEOC typically seeks to publicize resolutions of EEOC litigation to deter future violations by the respondent and other entities subject to the laws. Mediation is less helpful, however, and usually occurs much earlier, before anyone determines whether a violation has occurred.
EEOC investigations and litigation can be time consuming, expensive, and often frustrating. However, by knowing the EEOC’s procedures and being aware of potential pitfalls, companies stand a better chance of emerging with their reputations intact.
Eric S. Dreiband is a partner at the law firm of Jones Day in Washington, D.C. He served as general counsel of the U.S. Equal Employment Opportunity Commission from 2003 to 2005.