Monthly Compliance Calendar – September 2024 – Responding to an EEOC Compliant

Holidays

Labor Day – First Monday in September

Important Dates and Deadlines for this Month

September 30

• End of Q3, calendar year. *
• The VETS-4212 Report is due for Federal contractors and subcontractors.

Topics to Discuss and/or Review

For clients with access to the Forms Library, references to this section can be found in the folder “EEOC and Affirmative Action” > “EEOC Complaint Process”

1. Know What to expect after a charge is filed.
   • When a charge is filed against an employer (Respondent), the EEOC notifies them within 10 days, providing a link to the Respondent Portal for accessing the charge, submitting a position statement, and receiving investigation updates. A charge does not mean discrimination occurred; the EEOC investigates to determine reasonable cause.
   • Respondents may resolve charges through mediation or settlement, which are voluntary. During the investigation, both parties provide information. The Respondent may need to:
     • Submit a position statement.
     • Respond to a Request for Information (RFI).
     • Permit an on-site visit.
     • Provide contact information for witness interviews.
     • The EEOC evaluates all information and makes a recommendation on whether discrimination occurred.
   • When discrimination charges are unclear, the EEOC may determine that an investigation is necessary. Respondents should present facts to show allegations are incorrect or not violations. Cooperation helps the EEOC investigate promptly. Respondents should:
     • Work with the investigator to gather evidence efficiently.
     • Respond promptly to EEOC requests, even if the charge seems meritless.
     • Contact the investigator if extenuating circumstances prevent a timely response.
     • Provide complete and accurate information.
   • The EEOC can subpoena relevant information and may modify requests if needed. Keep relevant documents and ask the investigator if unsure. The EEOC will:
     • Answer questions and provide investigation status updates.
     • Allow Respondents to respond to allegations.
     • Conduct a timely investigation and consider all defenses.
     • Inform Respondents of the investigation outcome.
   • After the investigation, the EEOC will determine the charge’s merits. If no reasonable cause is found, the Charging Party gets a Dismissal and Notice of Rights to sue in federal court within 90 days. If reasonable cause is found, both parties receive a Letter of Determination and may resolve the charge through conciliation. If conciliation fails, the EEOC may file a lawsuit or issue a Notice of Right to Sue.

2. Review Steps for response.
   • Review the charge notice carefully. The EEOC “Notice of a Charge of Discrimination” informs you that a complaint (a “charge of discrimination” or a “charge”) has been filed against your business. It does not mean that you have violated the laws that the EEOC enforces. A charge is a complaint of discrimination, not a determination that discrimination has occurred.
   • Follow the directions on the EEOC charge notice. The notice may ask you to provide a response to the charge (a “position statement”). This is your opportunity to explain why the claims in the charge are incorrect or not illegal.
   • Consider EEOC mediation to resolve the charge quickly and confidentially, at no cost.
     • What is Mediation? Mediation is an Alternative Dispute Resolution (ADR) process offered by the EEOC as an alternative to traditional investigations or litigation. It is an informal process where a neutral third party helps both sides reach a voluntary, negotiated resolution of the discrimination charge. The mediator facilitates discussion, helps clear up misunderstandings, identifies underlying concerns, and finds areas of agreement. The mediator does not impose a decision but assists the parties in reaching a mutually acceptable resolution.
     • How it Works – An EEOC representative will contact both the employee and employer to discuss participation in the mediation program. If both parties agree, a session with a trained and experienced mediator will be scheduled. While legal representation is not required, either party may choose to have an attorney or other representative present. It is crucial that attendees have the authority to resolve the dispute. If mediation is unsuccessful, the charge will proceed to a standard investigation.
   • Respond to requests for additional information from the EEOC, even if you believe that the charge is frivolous. The EEOC investigator may request documents, interviews, a conference or an on-site inspection. The information you provide may cause us to dismiss the charge.
     • If you need additional time to respond, or if you have questions or concerns about the type or amount of information that the EEOC has requested, contact the investigator assigned to the charge. The EEOC may grant you an extension or modify the information request, depending on the circumstances.
   • Protect employees from retaliation. Ensure that the employee is not punished for filing the charge, and ensure that employees are not punished for participating in an investigation.
     • Retaliation is illegal, even if the EEOC concludes that the charge of discrimination does not have merit.
   • Retain relevant documents. If you are not sure whether evidence, including a particular document, is relevant, ask your investigator.

3. Review steps to create an effective position statement. By following these steps, you can create a strong and effective position statement that helps the EEOC understand your side of the story and facilitates a thorough investigation. You are not required to hire a lawyer to help you draft a position statement or otherwise respond to a charge of discrimination. However, at any point in the EEOC charge process, you may do so, if you would like.
   • Be Clear and Concise: Address each allegation specifically and provide a factual response. Avoid unnecessary details and focus on the relevant facts.
   • Provide Supporting Evidence: Include documents, witness statements, and other evidence that support your position. This can help the EEOC understand your perspective and reduce the need for additional information requests.
   • Explain Your Policies: Describe any relevant company policies or procedures that apply to the allegations. This can include anti-discrimination policies, training programs, and any actions taken to prevent discrimination1.
   • Include Organizational Information: Provide a brief overview of your organization, including its legal name, address, and the contact information of the person responsible for responding to the charge1.
   • Raise Applicable Defenses: If there are legal defenses relevant to the charge (e.g., based on religion, status as a Tribal entity, or bona fide private membership club), clearly explain these defenses and provide supporting information.
     • The EEOC encourages you to raise in your position statement any factual or legal defenses that you believe are applicable. The EEOC carefully evaluates any asserted defenses, including those based on religion, status as a Tribal entity or bona fide private membership club, or other defenses at any time during the EEOC’s administrative process.
   • Be Cooperative and Timely: Work with the EEOC investigator to gather evidence efficiently and respond promptly to requests for information. If you need more time, communicate with the investigator to arrange a new due date.
   • Maintain Professionalism: Keep the tone professional and respectful. Avoid making personal attacks or emotional statements about the Charging Party.

Tips

More information in reference to the topics discussed in this month’s compliance calendar can be found in our comprehensive online Forms Library, which is available to members 24/7.