What happens when a current or former employee files a charge of discrimination with the EEOC? The EEOC has explained it in its description of the charge handling process. However, I imagine if a company has not been through the process, it can still be confusing.
Therefore, in the spirit of my last few blog posts and my new fascination with infographics (explained here on the Arizona Attorney blog), I decided to put the process into a picture.
The easiest way to explain it is this– There is one main road as the investigation proceeds, but there are many different twists and turns. For example, one of the first questions that can throw the investigation off the track is whether the EEOC even has jurisdiction. If the EEOC does not, the investigation should not proceed.
At some point the EEOC may prioritize a charge. A category “A” may have strong documentation or witness support. It also includes policies that appear to be discriminatory on their face and per se violations. Category “B” cases have less support than category “A” and may require additional investigation. Last, category “C” cases may have a fatal issue such as a failure to state a claim, an untimely charge, or a charging party who is not credible.
A charges include charges which fall within the national or local enforcement plan and other charges where further investigation will probably result in a cause finding; B charges include charges that initially appear to have some merit but will require additional evidence to determine whether continued investigation is likely to result in a cause finding and charges where it is not possible to make a judgment regarding the merits; and C charges are those in which the office has sufficient information to conclude that it is not likely that further investigation will result in a cause finding. A charges will receive priority treatment; B charges will be investigated as resources permit; and C charges will be dismissed.
In many instances, an employer will be given the opportunity to participate in mediation. An employer is also given the opportunity to submit a position statement detailing its response to the allegations. This is where it is essential for the company and/or its legal counsel to give a complete and detailed response – including background about the company (for context), the facts about what occurred (or did not occur) and why, the legal analysis, and also attaching exhibits that will assist the investigator in understanding the company’s position.
The EEOC may ask for additional documents and information, and if the company objects to the production of certain documents or information, the EEOC may pursue an administrative subpoena. That process – including the petition to revoke – is probably best saved for its own chart.
The end of the road shows the many ways a case may conclude (all involving an EEOC determination and Notice of Right to Sue). The parties may also choose to settle a matter, or if the EEOC believes there is reasonable cause a violation of the law occurred, the case will proceed towards conciliation.
And all that is in the picture…