Zandy - Discrimination Charge in the Mail? Don’t Be Scared

Discrimination Charge in the Mail? Don ’ t Be Scared, Be Prepared!! An HR Attorney ’ s Perspective on Surviving the Administrative Process
Aaron L. Zandy, SPHR, Esquire
Ford & Harrison LLP
(407) 418-2304
[email_address]

Bring It On!!!
EEOC - Knowledge is Power
The Charge - Preparing for Battle
Investigation - Doing it Right
Mediation - To Mediate or Not to Mediate
Position Statements - A Serious Endeavor
Determination – Now What?
Top Mistakes By Employers

EEOC - Knowledge Is Power

EEOC?
Equal Employment Opportunity Commission ( “ EEOC ” ) is an independent federal agency created by Congress in 1964 to eradicate discrimination in employment
EEOC wields great power & broad discretion in achieving the goal of eradicating discrimination in employment

EEOC ’ s Purpose?
Develop regulations & policy guidance to promote equal employment opportunity in the workplace, training & technical assistance, outreach, & educational programs
Investigate claims of discrimination to determine whether discrimination has occurred

Work-Share Agreement?
Fair Employment Practice (FEP) Agencies
Florida Commission on Human Relations (FCHR)
County & City Agencies

Laws Enforced by EEOC
Title VII of the Civil Rights Act of 1964
Age Discrimination in Employment Act of 1967
Rehabilitation Act of 1973
Americans With Disabilities Act of 1990
Equal Pay Act of 1963 (EPA)
Genetic Information Nondiscrimination Act of 2008

Laws Not Enforced by EEOC
Fair Labor Standards Act of 1938 (FLSA)
Family Medical Leave Act of 1993 (FMLA)
Civil Rights Act, Section 1981
Occupational Health Safety Act (OSHA)
Workers’ Compensation Retaliation
Worker Adjustment Retraining Notification (WARN)
Common Law Torts

Charging Filing Trends

The Charge – Preparing for Battle

Charge Filing Process
Charge of Discrimination filed (300 day statute of limitations / 365 in Florida)
Charge Affidavit - assistance by EEOC in drafting
No presumed guilt - allegedly
Charge will provide information explaining allegations, unlawful employment practice, who is involved, & what law(s) are involved
Executed by Charging Party (practice pointer … look closely at notary stamp)

Charge Filing Process
EEOC will notify Employer of Charge
Send a copy of Charge or notice of Charge
Title VII & ADA require notification within ten (10) days; however, this is often difficult given voluminous number of charges
“ No action required at this time ” notices

The Charge - First Things First
Letter of Representation (control interviews)
Litigation Hold Letter (avoid spoliage)
Stop the Clock on Damages
Unconditional Offer of Reinstatement
Affidavits or Witness Statements (lock it in)
Separate Hostile Parties Immediately

Ask investigator for a reading of Charge affidavit
Keep a detailed record of all conversations with EEOC
Avoid retaliation - discuss Charge only with employees who legitimately need to know about it
The Charge - First Things First

EEOC Charge Prioritization

The One “ C ” You Will Enjoy Getting
“ C ” Charges are immediately dismissed
Untimely
Complaining about a statute not covered by the EEOC or
Obviously merit-less

“ B ” is Average
Most Charges are classified as “ B ”
Charges which initially appear to have some merit, but will require further investigation
Employers typically offered mediation

“ A ” is Bad
High priority charges (e.g. systematic discrimination, pattern & practice, priority issues, serious allegations, etc.)
For example, criminal background check cases
No mediation is offered
High potential for EEOC lawsuit

Investigation – Doing It Right!

Preparing for Investigation
Identify potential witnesses
Identify documents to be reviewed
Prepare strategy for investigation
Prepare outline of questions
Review plan periodically
Attorney-client / Work product

The Witness Interview
Funnel approach to questioning
Conversational v. Accusatory
No threats or promises (especially confidentiality)
Remain neutral (independent from decision-maker)

The Witness Interview
Opportunity to tell his or her side/advise management of any other information to be considered (to accused)
Has witness kept diary, calendar of events?
Cover specific events in chronological blocks
Who, what, where, when how, why & any witnesses?

What To Look For During Interview
Are facts that have been presented first-hand, personal knowledge or hearsay, rumors or gossip?
Internal/external inconsistencies?
Does story make sense?
Documentation to corroborate
Amount of detail

What To Look For During Interview
Witness ’ demeanor (sweat, shifting in seat, lack of eye contact, pleading 5 th , etc.)
Was witness forthcoming or did you have to pull information?
Admissions (I was only trying to help … .)
Circumstantial evidence (behavior in other situations makes more likely that not … .)

Mediation – To Mediate Or Not To Mediate

To Mediate or Not to Mediate
Pro ’ s:
Process is free & confidential
Delay filing position statement
You might be able to resolve case
Repair existing relationship
Free discovery
You can scare them! 

Con ’ s:
Time
Cost
EEOC Mediators (some effective, others … well, not so effective)
Okay, I will say it … “ some are awful!!! ”
To Mediate or Not to Mediate

Who should attend?
What should you bring with you (someone with authority to settle, insurance carrier representative, fact witness, $ and release)?
Making EEOC Mediation Work for You

Effective Presentations at EEOC Mediation
Opening Statements
Don ’ t Attack (Won ’ t agree on facts, two sides of every story, open mind, listen, good faith, etc.)
Settlement Strategies (good faith offers, take it or leave it, brackets, don ’ t bid against yourself, etc.)
Interest v. Position negotiating

Position Statements – A Serious Endeavor

EEOC Process
Correct name & address
Number of employees
Organizational chart or statement
Written Position Statement on each allegation, supported by documentation or written statements,
Copy of each written rule, policy or procedure relevant to allegations
Personnel file of charging party & those identified in Charge

Corporate History & Description
Relevant Policies
Tell a Convincing & Easy to Understand Story
Respond to Allegations & Use Comparators
Legal Argument (case law & EEOC Guidance)
Exhibits
Affidavits, Declarations & Witness Statements (last resort)
Short & Sweet (like Aaron) 
Effective Position Statements

Be very careful in responding
Don ’ t assume you have to provide everything
You can object & ask for relevancy
Be tough & determined, but cooperative
Wiggle Room Footnote …
Misstatements in SOP can be used at trial
Effective Position Statements

Preparing for EEOC On-Site Investigation
Generally considered to indicate greater interest on part of EEOC
May ask questions about things not in Charge
Examination of workplace
Cooperate with investigator, but attempt to limit the scope to allegations in Charge
Prepare a comfortable interview environment for investigator & witness

EEOC Determination
182 Days - average time to finalize EEOC investigation
Failure to state a claim
Not timely filed
Unable to conclude information established violation of statute
Other

Ouch, They Believe the Charging Party
Cause Determinations
Request for Reconsideration and Substantial Weight Review
Talk to the EEOC Lawyers

Conciliation
Like Mediation on steroids
Monetary Relief (Unrealistic demands, poisons well in future lawsuit)
Non-monetary relief
Training
Posting Notices
Reinstatement
Confidentiality
Consent Decree

Good faith conciliation
Memorialize everything in writing
The EEOC Cannot Always Push You Around

We Still Cannot Reach a Resolution
EEOC Litigation- 200-450 cases filed a year
Right-to Sue

Top Mistakes When Dealing With the EEOC

Communicating with the EEOC
Underestimating who you are dealing with
Not expecting the EEOC to litigate
Retaliation
Turning everything over
Top Mistakes Made When Dealing With the EEOC

Not participating in mediation or using other avenues to settle
Not slowing the process down, double edged sword when it comes to back pay
Misstating the facts or hiding evidence
It isn ’ t the crime, it is the cover up
Top Mistakes Made When Dealing With the EEOC

Bring It On!!!
EEOC - Knowledge is Power
The Charge - Preparing for Battle
Investigation - Doing it Right
Mediation - To Mediate or Not to Mediate
Position Statements - A Serious Endeavor
Top Mistakes By Employers

Discrimination Charge in the Mail? Don ’ t Be Scared, Be Prepared!! An HR Attorney ’ s Perspective on Surviving the Administrative Process
Presented by:
Aaron L. Zandy, SPHR, Esquire
Ford & Harrison LLP
(407) 418-2304
[email_address]

Zandy - Discrimination Charge in the Mail? Don’t Be Scared

by HR Florida State Council, Inc. on Aug 24, 2011

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Zandy - Discrimination Charge in the Mail? Don’t Be Scared Presentation Transcript