The number of charges filed with the Equal Employment Opportunity Commission ("EEOC"), the Florida Commission on Human Relations ("FCHR"), and local agencies throughout Florida continues to grow. The EEOC reported 99,922 charges were filed in 2010, up from 92,277 in 2009. As a result, employers are required to respond to charges even more frequently than in the past. This is a brief summary of some points to consider when responding to a discrimination charge.
First and most importantly, conduct a thorough investigation before responding to a charge. Include witness interviews in the investigation. Approximately thirty percent (30%) of charges wind up in litigation. Often, employers submit a less than thorough response to a charge and then, when a lawsuit is filed, seek to rely on facts and legal defenses that were not raised in the response to the charge. Unfortunately, this makes the employer vulnerable to the accusation that the defenses raised in the litigation are not valid. That problem can be avoided by submitting a thorough response to a charge.
Second, be responsive, courteous, and cooperative with the agency's investigator. Although investigators can be difficult, it is clearly in the employer's best interest to be cooperative. Remember that the investigator will decide whether to issue a "for cause" determination and, although it is rare, can also recommend that the agency itself pursue an action against the employer.
Third, when it is available, submit evidence to the agency. If an employee was repeatedly disciplined and warned and later fired, include written warnings with the position statement. Also consider submitting sworn statements to confirm the facts incorporated in the position statement.
Fourth, although on-site investigations by the EEOC have been rare, the agency is now taking a more aggressive role and is conducting an increasing number of on-site investigations. If there is an on-site investigation, it is crucial for the employer to prepare its managers and supervisors to be interviewed to ensure that their testimony is complete, accurate, and consistent.
Finally, consider early mediation even if you believe you have valid defenses to the charge. Early mediation has the benefit of allowing the employer to size up the charging party and his or her claim. Additionally, mediation often results in settlement for an amount that is considerably less than the cost of responding to the charge. On the other hand, early mediation has the disadvantage of sending a message to the charging party and his or her attorney that you are willing to pay to avoid the process. Additionally, even with a confidentiality agreement, early settlement will often be known by current employees, and this clearly could result in additional charges.
In sum, more charges are being filed than ever before. Even though most charges do not end up in litigation, employers must nevertheless make certain that their response to a charge is accurate, documented, and complete in order to avoid significant problems should the charge result in litigation.
For questions regarding responding to charges of discrimination in general or a specific charge, contact your GrayRobinson attorney. GrayRobinson Labor and Employment attorneys have represented employers in responding to charges of discrimination in numerous cases and are experienced in all aspects of dealing with the EEOC, the Florida agency, as well as local equal opportunity agencies throughout Florida.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
