Responding to Charges Before the EEOC or NMHRB

Transcription

1 Responding to Charges Before the EEOC or NMHRB By: Barbara G. Stephenson Autumn 2012 Employment Law Breakfast September 26, 2012 Disclaimer The authors, publishers, speakers, and sponsors of this program present these materials with the understanding that the information provided is not legal advice. Due to the rapidly changing nature of the law, information contained in these publications or presented by the speakers may become outdated. As a result, an attorney or other individual using these materials must always research original sources of authority and update this information to ensure accuracy when dealing with a specific client s legal matters. Further, the presentation or materials provided are not intended to establish practice standards or standards of care applicable to an attorney s performance. In no event will the authors, the sponsors, the speakers, or the publishers be liable for any direct, indirect, or consequential damages resulting from the use of these materials.

2 Responding to Charges Before the EEOC or NMHRB By: Barbara G. Stephenson Introduction Many disputes with former or current employees begin with an administrative charge filed with the Equal Employment Opportunity Commission ( EEOC ) or the New Mexico Human Rights Bureau ( NMHRB ) and allege some form of discrimination or retaliation. These charges should be taken very seriously by employers. The manner in which such charges are handled can have a significant impact in the final outcome of a dispute between the employer and a former or current employee. I. The Jurisdiction of the EEOC and the NMHRB The EEOC is an independent federal agency created by Congress in the Civil Rights Act of The EEOC actually came into being on July 2, 1965 and earlier this summer the agency celebrated its 47 th birthday. Policy for the EEOC is set by a five-member bipartisan commission appointed by the President. Currently there is one vacancy on the Commission. The EEOC enforces several federal civil rights acts, including: Title VII of the Civil Rights Act of 1964 ( Title VII ) The Pregnancy Discrimination Act The Equal Pay Act of 1963 The Age Discrimination in Employment Act of 1967 ( ADEA ) The Americans with Disabilities Act of 1990 ( ADA ), as amended by Americans with Disabilities Act Amendments Act ( ADAAA ) The Genetic Information Non-Discrimination Act of 2008 ( GINA ). Under these statutes, there are numerous bases on which someone can allege discrimination, including: race color religion sex (and pregnancy) national origin age (40 years old or older) disability genetic information. In addition, these statutes all contain non-retaliation provisions prohibiting an employer from retaliating against someone for having filed a charge or pursued rights under one or more of these statutes. For example, Title VII provides that it shall be an unlawful employment practice for an employer to discriminate against any employee because he or she has made a charge

3 under Title VII. See 42 U.S.C. Section 2000e-3(a). The other federal civil rights statutes have similar provisions. All of the above statutes apply to employers having 15 or more employees, with the exception of the ADEA, which applies to employers having 20 or more. The payroll method of counting employees is used so that all employees on the payroll for each day of a given week are counted regardless of whether they are actually at work each day. Individual managers or supervisors are not considered employers under federal civil right statuses and cannot be named individually in charges. The NMRHB, the agency which is essentially the state equivalent to the EEOC, is part of the New Mexico Department of Workforce Solutions. The NMHRB is a neutral agency created by the New Mexico legislature to enforce the New Mexico Human Rights Act ( NMHRA ). The NMHRA was passed by the New Mexico legislature in 1969 and covers topics addressed by the federal civil rights statutes listed above. Employers are subject to the NMHRA as follows: Employers having 4 or more employees are prohibited from discriminating against an applicant or employee based on race, age (40 or more), religion, color, national origin, ancestry, sex, or physical or mental handicap or serious medical condition. Serious was added to precede medical condition in Beginning in 2001, employers having 50 or more employees are prohibited from discriminating against an applicant or employee based on spousal affiliation. Beginning in 2003, employers having 15 or more employees are prohibited from discriminating against an applicant or employee based on gender identity or sexual orientation. The NMHRA also prohibits any person or employee from engaging in any form or threats, reprisal, or discrimination against any person who has opposed any unlawful discriminatory practice or has filed a complaint, testified or participated in any proceeding under the Human Rights Act. See NMSA 1978, (I)(2). Because the NMHRA is the state equivalent to federal civil rights statutes such as Title VII, the ADA, the ADEA, and the ADAAA, the state act frequently is interpreted by New Mexico courts with reference to case law developed under those federal discrimination laws. See Trujillo v. Northern Rio Arriba Electric Cooperative, Inc., 131 N.M. 607, 41 P.3d 333 (2001). It should be noted, however, that the NMHRA is broader in its coverage than the corresponding federal statutes in several respects. For example, the NMHRA defines employer as any person employing four or more individuals and any person acting for an employer. See NMSA 1978, (B). Because the term employer encompasses any person acting for an employer, individuals may be named as respondents to charges filed under the NMHRA and may be held individually liable for violating the state statute. It is not uncommon for individuals such as supervisors, managers, or other employees who allegedly engaged in discriminatory practices to

4 be named as respondents to administrative charges. In 2011, the New Mexico Supreme Court made it clear that even though the NMHRB form for a charge of discrimination then in use was unclear, reference to a supervisor in the body of a charge was sufficient to exhaust administrative remedies. See Lobato v. State of New Mexico Environment Dept., 267 P.3d 65 (2011). It should be noted that the NMHRA also prohibits discrimination in housing, credit or public accommodations. For the most part, employers do not deal with these issues when responding to a charge of discrimination filed by a former or current employee. II. Process for EEOC or NMHRB Charges The EEOC and the NMHRB have entered into a Worksharing Agreement which describes how charges are handled. Most charges are considered filed with both agencies and generally the agency which first receives the charge will investigate and process the charge, provided that the receiving agency has jurisdiction. The EEOC will initially process Title VII, ADA, EPA, and ADEA, along with all charges filed by the EEOC Commissioners. The employer will receive the charge and appropriate instructions from whichever agency is going to handle the charge. When an individual feels he or she is aggrieved, that person has 300 days from the date of the incident in question in which to file a charge. At this administrative level, the person filing is called a Charging Party and the employer or supervisor is the Respondent. If an individual misses the 300-day deadline, that person cannot thereafter bring a lawsuit under the federal statutes or the NMHRA and based on the incident in question. On occasion, pro se plaintiffs or attorneys unfamiliar with employment law may bring a lawsuit alleging violation of a state or federal statute without having first filed an administrative charge. Such an action should quickly be responded to with a motion to dismiss for failure to exhaust administrative remedies. The concept of administrative exhaustion is very important because both Congress and the New Mexico legislature intended that as many disputes as possible get resolved at the agency level. This becomes all the more important when it is recognized that the number of charges continues to grow, both in New Mexico and nationwide. In fiscal year 2011, there were a total of 1,246 charges in New Mexico (this compares with 1,284 charges in Nevada and 1,841 charges in New Jersey, both of which are far more populous than New Mexico). At the beginning of a charge, the employer may have an opportunity to engage in mediation of the charge. Both the EEOC and the NMHRB have mediation programs; provided, however, the Charging Party must have consented to mediation. Mediation should be seriously considered by an employer if that opportunity is available. Many times, a potentially-costly dispute can be inexpensively resolved at this early stage. Both the EEOC and the NMHRB will allow the Respondent to require a separate settlement agreement, beyond that disposing of the pending charge, and resolving any other employment-related claims which the Charging Party may potentially have against the Respondent. If both parties do not consent to mediation of a charge or if mediation is not successful, the applicable agency will provide the Respondent with a timetable for submitting a Statement of Position. See the following section.

5 III. Preparation of a Statement of Position The preparation of a Statement of Position should be taken very seriously by the Employer/Respondent. In the Statement of Position, the employer s defenses to a charge must be complete and accurate. Subsequent attempts to add to the list of reasons for a personnel action as the dispute moves forward can create the appearance that the Respondent is embroidering its position after the fact. This, in turn, can create an argument that the employer s action was merely a pretext for unlawful discrimination. In the process of preparing a Statement of Position, the following should be kept in mind: The Respondent should determine if defenses can be supported through documentation and witnesses. Any problems or bad facts should be identified early so that the Respondent can plan accordingly. Dangerous charges should not be defended on principle alone. Documentation or information requested by the agency should be assembled. If the scope of a request for documents appears unreasonable, this should be discussed with the agency. If an extension is needed for preparation of a Statement of Position, this should be sought at the outset. Generally, both the EEOC and the NMHRB are reasonable on the topic of extensions. Throughout the process, the EEOC or NMHRB investigator should be treated with professional respect and courtesy. As the Respondent moves forward in preparing the Statement of Position, having established a rapport with the investigator will aid in seeking clarification, narrowing the scope of a document request, and the like. A good rapport also will increase the chances of a good outcome for the Respondent. All written material which supports the Respondent s position should be assembled and preserved. This might include policies, personnel files, statistical information, and other documentation supporting the legitimate business reasons for any underlying personnel action. All decisionmakers and other witnesses should be interviewed and written statements should be obtained as applicable. In preparing the actual Statement of Position, at all times it should be kept in mind that this document will be available to the Charging Party s attorney.

6 The Statement of Position should be a narrative and should begin by describing the nature of Respondent s business, the company s history, and a detailed chronology of Charging Party s employment. In the Statement of Position, each specific allegation from the Charging Party should be responded to. Affidavits or statements of witnesses should be used, as appropriate, and all critical documents or supporting materials should be attached. Legal authority should be included which supports each aspect of the Respondent s defenses. Frequently, the EEOC or the NMHRB also asks for a response to a Request for Information which generally is a request for statistical information and documents. The response to this Request should be attached to the Statement of Position and should attempt to provide all documents sought. If the agency s Request is unduly broad, the investigator should be consulted with the goal of narrowing the Request. The investigator frequently will agree to limit the scope of a document request if the Respondent has a legitimate reason for the limitation. Overall, the tone of a Statement of Position should be calm, objective, and persuasive. The Statement should seek to answer all questions the EEOC or NMHRB may have, respond to bad facts or potential inconsistencies, and give the agency a basis for issuing a no probable cause determination. As noted above, the Statement of Position is the Employer/Respondent s opportunity to tell the entire story. Frequently, a comprehensive, well-drafted Statement of Position will discourage a Charging Party from going forward. In addition, if the Charging Party already has an attorney, the attorney may realize from a careful review of the Statement of Position that litigation would not be an appropriate course of action. IV. Completion of the Administrative Process Once a Statement of Position is submitted to the EEOC or the NMHRB, the Respondent may wait many months while the agency investigates the charge. On occasion, the Respondent will receive follow-up requests for information. Less frequently, the investigator may want to conduct interviews and/or do an on-site review of the work location. If the Charging Party is still an employee, he or she should not be considered immune from management, simply because the employee has a charge pending. On the other hand, the employee should not be unduly targeted because a charge is pending. At the conclusion of the agency s investigation, the agency will issue either a no cause or for cause determination. The processes with the state and federal agency are slightly different, as follows:

7 If the EEOC issues a for cause determination, the agency will then ask the Respondent to engage in conciliation. Conciliation generally is similar to mediation; provided, however, that the agency will be less flexible in conciliation proposals offered. If conciliation is successful, the charge will end at that point. The Respondent should insist that the Charging Party release all other claims beyond those over which the agency has jurisdiction. As to charges with the EEOC, after a for cause determination, the EEOC attorneys may decide to file a lawsuit on behalf of the Charging Party. If not, the Charging Party will be given a Notice of Right to Sue and will have 90 days in which to initiate a lawsuit. If no lawsuit if filed within that 90-day period, the Charging Party cannot thereafter file a lawsuit based on the closed charge. With charges before the NMHRB, if a for cause determination is issued on all or part of the charge, the parties again will have an opportunity to engage in settlement discussions. If those discussions are unsuccessful, the NMHRB will then schedule a hearing before the New Mexico Human Rights Commission. Whatever the Commission determines is non-binding. If an award is made for Charging Party, the Respondent likely will appeal, and vice versa. If the NMHRB issues a no cause determination on a charge, the Charging Party will receive a Notice of Right to Sue and have 90 days in which to file a lawsuit. Frequently, both the EEOC and the NMHRB issue Notices of Right to Sue with the result that the 90-day periods might not expire simultaneously. Overall, the vast majority of administrative charges are disposed of either through no probable cause determinations, mediation, or conciliation. Nevertheless, Employers/ Respondents always should treat administrative charges as if such charges are merely the first step in a lawsuit.