HR Tips: Responding to an EEOC Complaint

You’ve received in the mail a letter from the EEOC, stating that the employee you fired for continued poor performance, tardiness and dishonesty last month, is alleging a charge of discrimination. The charge itself is barely more than a paragraph, written by the employee themselves, alleging that they were really fired because of gender.

It’s tempting to respond quickly with a similar paragraph of your own. But this isn’t the best approach and could lead to further investigation and a charge from the employee. Instead, taking the time to put in the effort when responding to the allegations can save you time and money in the long term.

Step One: Read the Complaint Carefully
You dealt with the employee’s complaints on a daily basis, so it’s all too easy to think you know exactly what the issue is. Make sure that’s true, though, before you start to respond to the complaint. Otherwise, you run the risk of failing to answer the original question—which can give the impression that you are trying to be evasive.

Step Two: Check the Dates
Verify the date your response is due. The notice you receive should have this information. If you know it won’t be possible for you to complete the response in the allotted time—and you have a compelling reason why this is the case—call immediately for an extension. Be aware that the commission does not have to grant extensions of time, and is less likely to if you call on the last day without a good reason for why you needed it. Instead, try your best to complete and submit the response by the deadline. Failure to do so doesn’t just look bad—it could lead to a negative determination against the company.

Step Three: Gather Your Documentation
You probably already have a lot of documentation that can be used to help you respond to the EEOC complaint. Your response should be comprehensive and detailed, answering each point of the complaint and showing why the actions you took were reasonable, legitimate and non-discriminatory.

Consider including documentation as attachments to your response. Useful documentation might include the following:

  • Investigation report—if you already investigated the employee’s performance or behavior before terminating their employment, a copy of the investigation report shows the company was diligent in determining that the employee was at fault.
  • Counseling reports—show that you spoke to the worker about their behavior on several occasions.
  • Performance Improvement Plan—these documents indicate the lengths the company went to, in an effort to help the employee succeed.
  • Formal discipline—employee warning letters demonstrate the employee was on notice that continued issues could cost them their job.
  • Emails—if you have anything useful documenting the issues or the employee’s responses, particularly if they contradict what the worker is now alleging in the claim.
  • Signed affidavits—from employees, customers or other witnesses. These are not appropriate for every situation, but if you investigated and subsequently terminated the employee for poor customer service, statements about the rude behavior from uninvolved third parties may be useful to help defend the complaint.
  • Policies and procedures, including your statements prohibiting discriminatory or retaliatory treatment, or any specific policies that the employee violated and was disciplined for.
  • The employee’s signed acknowledgment for receipt of the employee handbook, training class or the policy that was ultimately violated.
  • Demographics of the workforce—the EEOC will usually ask you for this information. Go above and beyond by providing figures such as all the employees who were dismissed for similar reasons, and their protected status. If a worker alleges she was terminated because she is a woman, but you terminated three men for similar behavior during the past year, this can help to establish the lack of a discriminatory animus for your actions.

Avoid deleting or destroying information that could be relevant to the charge until further notice—your actions are unlikely to be viewed favorably by the EEOC.

Step Four: Write Your Response
Create a response that is sufficiently detailed to explain all relevant points. Your response may be multiple pages in length—and that is fine, as long as it addresses the issues and answers the relevant questions. Remember that the investigator doesn’t know your business. If you’re subject to specific legal requirements for staffing levels, for example, explaining this can help the investigator understand why the employee’s repeated tardiness was a critical problem.

Step Five: Verify the Response for Accuracy
Check if all the information in your response is correct. This response could be the backbone of a court case one day, and inaccuracies will be damaging to your position.

And it’s not just the accuracy of the response that could hurt your case. Your tone can also create a negative impression. Strive for a factual, professional neutral tone that avoids judgment and “snark.” Even though you might be angry, make sure it doesn’t show in your response. Consider the impression the EEOC investigator will get from this sentence:

“The employee has always been lazy, and they know it. We gave them more than a fair chance to get it together. I’m surprised they were even motivated enough to write this complaint.”

Compared to this sentence:

“The company was surprised to receive this complaint. The employee was provided with ample notice and opportunity to correct the behavior over a seven-month period. The employee was counseled on six occasions, was placed on a performance improvement plan—but ultimately failed to meet the standards set—and received two formal warnings. At no time did the employee mention concerns of discrimination. In fact, the employee openly admitted having difficulty getting motivated to come to work (see Attachment One, email from the employee to her manager).”

Ask yourself if you would be comfortable seeing your response highlighted on the big screen in a court case, or on the front page of the newspaper. If you would be uncomfortable or embarrassed, you probably need to review your response again to make the necessary adjustments.

Step Six: Involve Your Attorney
Ultimately, if the initial determination and investigation is not in the company’s favor, legal counsel will need to be involved in the case. Bring in the attorneys initially to make sure they are comfortable with the response you plan to give.

Step Seven: Cooperate
Do your best to be cooperative and welcoming throughout the process. It can’t hurt and can only help your case in the long term. Occasionally an EEOC investigator might want to meet with staff. The investigator has a legal right to do so, and the employer does not have the right to be present, unless the employee being interviewed is a member of management.

Step Eight: Be Patient
EEOC determinations and investigations take a long time. If you think you’ll hear within a week or two of responding, think again. The EEOC currently estimates that it takes approximately 182 days on average to process an investigation. Any delay on your part will simply extend this time even more.

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