What to do when the EEOC comes a-knocking

You’ve just received a charge from the U.S. Equal Employment Opportunity Commission (the “EEOC”) in the mail. Your former 59-year-old employee, whose job you eliminated last month while he was on disability leave, has filed a complaint with the EEOC against your company alleging age and disability discrimination and retaliation.

What do you do?

Even if you believe you had legitimate business reasons to let this employee go, do not ignore his complaint. The EEOC is obligated to investigate every charge filed with the agency.

Age discrimination appears to be one of the EEOC’s priorities in the coming year. And a retaliation claim can succeed, even if the underlying discrimination claim does not. So treat this charge as seriously as you would any complaint filed against your company in court.

Here are some basic steps you should take in response.

  • Put your insurance carrier on notice.

Even if you do not have Employment Practices Liability Insurance, your Commercial General Liability policy may cover you. The last thing you want is to lose coverage you’ve paid for simply because you didn’t inform your insurance company in a timely manner.

  • Institute a litigation hold.

Inform all employees who had any contact with the claimant, including but not limited to Human Resources staff, to preserve any related documents. This includes paper as well as electronic copies, recordings, photographs, voicemails, emails, text messages and social media posts. You never know what may help your defense. If any damaging documents exist, you must preserve those, as well. Otherwise, you could be subject to a spoliation of evidence ruling, whereby the presumption that your company did something wrong is assumed if you fail to produce documents that should exist.

  • Notify your attorney, whether in-house or outside counsel.

Do not attempt to handle this on your own. What you think you will save in legal costs in the short run will cost you dearly.

  • Review your nondiscrimination and anti-harassment policies and procedures.

Do they address the allegations? If so, did the employee follow your policies and procedures? Did you follow them?

  • If you do not have comprehensive workplace policies and procedures that address discrimination and harassment,

now would be a good time to get started on developing these preventative measures. You should include a robust complaint and investigation procedure, as well as a training component. Good policies that are used appropriately make for an excellent defense.

  • Investigate the allegations if you haven’t done so already.

If you previously conducted an investigation, review it to be sure it is as complete and well-documented as possible. It should include interviews of all known witnesses and reviews of performance evaluations, any disciplinary actions taken and prior investigations. Fill in any gaps. If any of the claims alleged in the EEOC charge are different from the complaints the employee made internally, be sure to investigate those.

  • Assess any remedies taken.

Was there resolution? Should any remedial measures be taken now?

  • Gather all related documents.

The EEOC will be looking for these. Be sure to include your company’s policies and procedures, investigation reports and such exhibits as performance evaluations and disciplinary records, as well as evidence of any remedial actions taken.

  • Consider mediation.

The EEOC offers early mediation with its own trained mediators in an effort to resolve the dispute before it escalates into a full-blown investigation and possible litigation. This option can be cost effective and less disruptive for your company.

  • Work with your attorney to draft a written response.

Your attorney’s ability to draft a strong, effective response depends on your ability to provide her with a timeline of events, complete documentation, witnesses, and other supporting evidence.

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