Originally created 01/08/01

Brannen: Handling discrimination charges



Many things are very unwelcome including the flu and a letter from the IRS demanding an audit of your tax return. Among the most unwelcomed for a manager is a notice from the Equal Employment Opportunity Commission of an employment discrimination charge.

It is important that a manager understands the entire process of filing, responding and resolving an EEOC discrimination charge.

The EEOC processes complaints of employment discrimination based on race, color, religion, sex or national origin. It also enforces federal laws regarding age, disability and pay discrimination.

Generally, an employee must file a complaint within 180 days after the alleged act occurred, but there are exceptions that can extend the time to 300 days.

An EEOC investigator will interview the charging party to determine if there is a basis for a charge. If so, the charge must be served to the employer within 10 calendar days.

When an employer receives the charge they should immediately try to determine if its validity. Start the process by reviewing relevant personnel records and human resource policies.

For example, if the complaining employee was terminated for poor performance, compare their work record with others to determine if standards have been applied equally. If they have not, then there must be a legitimate business reason for the difference, otherwise the employer might be guilty of disparate treatment, a type of employment discrimination.

If the charging party is an applicant, review all applications for the job, the employment advertisement and the selection procedures to determine if their application was handled fairly.

Review the organization's related policies, procedures and guidelines. Were the organization's internal rules and procedures followed when it took the action the employee is challenging? If not, the EEOC might see this as evidence of discrimination.

Next, interview anyone with knowledge of the issues surrounding the charge. Make certain everyone understands the investigation to gather information, and explain that there will be no retaliation against employees giving information unfavorable to the organization.

The purpose of the investigation is to uncover the truth. If discrimination has or might have taken place, then the employer has a moral, ethical, and legal obligation to fix it.

One approach is to propose a settlement to the charging party through the EEOC. If the party accepts it, the case is closed. Another alternative is to mediate the charge through EEOC. In this process a neutral third party brokers a mutually agreeable settlement between employee and employer. The mediation is voluntary, confidential and free.

If the employer's investigation concludes no wrong has been done, the organization needs to prepare a "Position Statement." The statement must explain why the action taken was for legitimate business reasons and was not discrimination. Outline the applicable policies and procedures and attach copies. Describe in chronological detail the activities and events that led to the action. Make it clear the action was fair and consistent with policy.

Upon receipt of the statement, the EEOC may seek additional information or hold a fact-finding conference on the organization's premises before making a decision. If the decision is in favor of the employer, the EEOC issues a "no cause" finding. If the decision is in favor of the employee, a "cause" finding is issued and the EEOC attempts to help the parties reach a settlement.

If an agreement is reached, the case is closed. If not, the EEOC may file suit. However, its preferred approach is remedial rather than punitive. They would be happier with an agreement between the parties.