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 ProcessAaron L. Zandy, SPHR, Esquire

Ford & Harrison LLP(407) 418-2304

[email protected]

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 5th, 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

Determination – Now What?

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• Determination – Now What?• Top Mistakes By Employers

Discrimination Charge in the Mail? Don’t Be Scared,

Be Prepared!! An HR Attorney’s Perspective on

Surviving the Administrative ProcessPresented by:Aaron L. Zandy, SPHR, Esquire

Ford & Harrison LLP(407) 418-2304

[email protected]