EEOC Stats. Preparing & Responding to EEOC Charges

Transcription

1 Preparing & Responding to EEOC Charges 05/03/2012 Presented by: Bettye Lynn Lynn Ross Smith & Gannaway, LLP 306 W. Broadway Ave Fort Worth, Texas Lynn Ross Smith & Gannaway, LLP EEOC Stats 100,000 charges in /3 charges dismissed with no merit (NPC) 261 EEOC-filed lawsuit Thousands of private party lawsuits individual and class actions Lynn Ross Smith & Gannaway, LLP 1

2 Preparing & Responding to EEOC Charges 05/03/2012 What if the EEOC Goofs? Lynn Ross Smith & Gannaway, LLP 2

3 What Does Notice of Charge Look Like? Lynn Ross Smith & Gannaway, LLP 3

4 What Information Will Charge Contain? Lynn Ross Smith & Gannaway, LLP 4

5 Preparing & Responding to EEOC Charges Lynn Ross Smith & Gannaway, LLP 05/03/2012 5

6 What to do when served with a Charge Preliminary Response - immediately Do not ignore the Charge Prepare a notice of appearance and request an extension on the position statement, if necessary Check to see whether the Charge was timely filed Plan internal investigation If Charging Party is still employed by the City, take steps to insure no potentially retaliatory action is taken If you are given the option of mediating the charge, assess whether it is in the City s interest to pursue settlement or mediation If you have chosen not to mediate, or if mediation is unsuccessful, prepare and file a position statement by the due date What Other Correspondence Will City Receive? Lynn Ross Smith & Gannaway, LLP 6

7 Preparing & Responding to EEOC Charges Lynn Ross Smith & Gannaway, LLP 05/03/2012 7

8 Pros of Mediating Pros Speedy Resolution Economical Settlement Contain Costs Free Discovery Could be most cost-effective way to resolve a claim Mediation is Confidential Mediation is not an admission of wrong-doing Learn things in mediation that you might not otherwise learn Cons of Mediation Cons We didn t violate the law Settling this case will lead other employees to file charges We don t know anything about this claim Taxpayers won t like City giving away money Lynn Ross Smith & Gannaway, LLP 8

9 Case-Specific Considerations Does the case involve hot topics for the EEOC? Are there vulnerabilities in the Employer s defense to the charge? Problems with the timing of the adverse action? How much of the City s defense is documented through contemporaneous memoranda or City records? Is this particular Charging Party likely to accept a cost-effective settlement? Lynn Ross Smith & Gannaway, LLP 9

10 Preparing & Responding to EEOC Charges Lynn Ross Smith & Gannaway, LLP 05/03/

11 Preparing & Responding to EEOC Charges 05/03/2012 Then Th What? Wh t? Lynn Ross Smith & Gannaway, LLP 11

12 Who Investigates? Outside Attorney or HR? Ensure Attorney/Work Product Privilege and Attorney/Client Privilege Halt destruction of documents and gather up all possible documents including s Conducting Internal Investigation A prompt and thorough investigation is essential to an effective defense of an EEOC Charge Conduct your own independent investigation Begin investigation immediately Gather information Evaluate the case Determine any liability on the City s part Prepare a comprehensive and persuasive position statement Objectively evaluate the case in terms of potential liability Lynn Ross Smith & Gannaway, LLP 12

13 Preparing & Responding to EEOC Charges 05/03/2012 Guidelines in Conducting the Internal Investigation Review Documents Interview Witnesses All Decision-Makers Managers and Supervisors Anyone who directly observed a relevant incident Authors of any relevant documents Conduct witness interviews in person when possible Prepare for interviews ahead of time Identify other relevant documents and witnesses Consider the possibility of creating demonstrative exhibits Look for discrepancies and ask for explanations Lynn Ross Smith & Gannaway, LLP 13

14 Preparing & Responding to EEOC Charges Lynn Ross Smith & Gannaway, LLP 05/03/

15 Preparing Position Statement Request confidentiality Essential to prepare accurately and thoroughly Answer all questions Provide all requested documents Have decision makers review for accuracy F ili i ith l l d f d dd th Familiarize with legal defenses and address them while answering questions Lynn Ross Smith & Gannaway, LLP 15

16 Drafting an Effective Position Statement Explicit denial of Charging Party s claim and brief summary of City s position Explain nature of City s operations and Charging Party s job Explain City s EEO policies and complaint procedures Explain Charging Party s employment history with City in chronological order Explain in detail facts and circumstances which gave rise to non-discriminatory employment decision Drafting an Effective Position Statement Include section that affirmatively shows nondiscrimination Explain why any comparable employees identified by Charging Party are not similarly situated Consider other possible defenses to liability frequently helpful to cite to EEOC guidelines Timeliness Constructive Discharge Offers of Reinstatement After-acquired evidence Include conclusion section Lynn Ross Smith & Gannaway, LLP 16

17 Additional Suggestions Attach documents Check your facts Don t use jargon or technical terms without explaining them Refer as respectfully as possible to Charging Party Highlight good facts but don t ignore bad facts Remember Position Statement is discoverable and can be used in subsequent litigation Multiple Uses of Position Statement EEOC uses to get more information from Charging Party EEOC uses during site investigation Plaintiff s attorney may use it to impeach City s witnesses if there is a trial Lynn Ross Smith & Gannaway, LLP 17

18 EEOC Investigation and Subpoena Authority EEOC has broad investigative and subpoena power authority in its investigative role Courts enforce most EEOC subpoenas Courts generally have enforced subpoenas over claims that they are too indefinite to provide basis for investigation or that EEOC has acted in bad faith Courts will enforce subpoena and leave the timeliness issue for later disposition Court will normally enforce it so long as requested information is relevant and material The City s Rights as an Employer Depending on the status of your employees (i.e. managers or non-managers), you may be entitled to sit in (or listen in) on any EEOC interviews City s attorney should always meet with managers prior to any EEOC interview Important to know what they will say beforehand p y y Never encourage anyone to withhold information or not tell the truth Lynn Ross Smith & Gannaway, LLP 18

19 On-Site Investigation EEOC investigator t is not your friend Be courteous Decide in advance which management representatives will be present for interview and prepare them well City s Attorney should sit in on management interviews Do not sign statements prepared by EEOC EEOC will want to interview employees e.g. witnesses No Probable Cause and Dismissal Lynn Ross Smith & Gannaway, LLP 19

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21 Thank you!! BETTYE LYNN Attorney At Law LYNN ROSS SMITH & GANNAWAY, LLP 306 W Broadway Ave Fort Worth, Texas Tel (817) Fax (817) Lynn@LaborCounsel.net THIS IS NOT LEGAL ADVICE, PLEASE CONTACT YOUR LABOR AND EMPLOYMENT ATTORNEY REGARDING YOUR SITUATION Lynn Ross Smith & Gannaway, LLP Lynn Ross Smith & Gannaway, LLP 21