What To Do When A Charge Is Filed Against Your Company

A. While there are a few rare exceptions, ordinarily the charge must be filed by a member of the public who has contacted EEOC and alleged that a company has discriminated against him or her. The fact that the EEOC has taken a charge does not mean that the government is accusing you of discrimination. The charging party has alleged that your company has discriminated against him or her and it is the EEOC’s job to investigate the matter to determine whether there is reasonable cause to believe that discrimination has occurred.

B. EEOC will notify the employer within 10 days of receiving a charge. Notification normally includes a copy of the charge briefly identifying the charging party, the basis (e.g., race, religion, sex, etc.) and issue(s) (e.g., hiring, promotion, discharge, etc.) of the allegation, and the date(s) of the alleged discrimination. Ordinarily, a plain language explanation of the EEOC charge process will be included, as well as explanations of the employer’s obligation to retain records pertaining to the charge and of the non-retaliation provisions of the EEOC laws. An invitation to mediate the charge may also be included in the notification package.

C. After a charge is filed, you may be asked to provide a statement of position responding to the allegations in the charge. You may also be asked to provide documents or information related to the subject of the EEOC’s investigation. Additionally, the EEOC may ask to visit your worksite or to interview some of your employees. Cooperation with EEOC requests for information is helpful to the EEOC in investigating charges. When an employer refuses to provide information, or does not do so in a reasonably timely manner, the EEOC may issue a subpoena. You should retain an attorney to represent you during the EEOC’s handling of the charge but you are not required to do so.

D. The EEOC Notice of Charge form that you receive should explain the agency’s record keeping requirements. When an EEOC charge has been filed against your company, you should retain personnel or employment records relating to the issues under investigation as a result of the charge, including those related to the charging party or other persons alleged to be aggrieved and to all other employees holding or seeking positions similar to that held or sought by the affected individual(s).

Once a charge is filed, these records must be kept until the final disposition of the charge or any lawsuit based on the charge. When a charge is not resolved after investigation, and the charging party has received a notice of right to sue, “final disposition” means the date of expiration of the 90-day statutory period within which the aggrieved person may bring suit or, where suit is brought by the charging party or the EEOC, the date on which the litigation is terminated, including any appeals.

E. Talk to the EEOC investigator before submitting information in a format different from that requested or refusing to comply altogether. Explain what business records you have and how you believe you could supply the information in a manner closely resembling the manner requested. Most of these situations can be worked out so that EEOC gets the information it needs without the employer feeling unduly burdened.

F. The EEOC generally sends notice to employers that a charge has been filed within 10 days after the charge is field. It may occasionally give you notice of a charge without actually including a copy of the charge. When this happens, ordinarily you need do nothing more until you are contacted at a later date. However, if you want more information, call the EEOC office that sent the notice and speak with the staff person assigned to handle the charge to obtain more information.

G. Can I take action against an employee who has filed a charge?

No. The EEOC-enforced statutes contain strong protection against retaliation for having filed an EEOC charge, even if the charge is later dismissed by the EEOC or rejected by a court.

H. What should I do to prevent retaliation against and preserve relationships with current employee charging parties?

The charge should be treated confidentially. If the charging party is a current employee, make sure no employee retaliates against the person filing the charge. Make clear to employees who file charges for their relationship with the company will not be affected. As to former employees, be sure that the EEOC filing does not affect the nature of any references given.

I. If the EEOC dismisses a charge, it will not proceed further with an investigation. The charging party is notified of his or her right to file a lawsuit in court. A charging party may file a lawsuit within 90 days of receiving his or her dismissal notice.

The laws also permit a charging party to choose to go to court instead of waiting for the EEOC to complete its investigation. Therefore, in some cases, the EEOC may issue a notice of right to sue upon the charging party’s request.

J. If the EEOC determines that there is reasonable cause to believe that discrimination occurred, a written determination and invitation to enter into conciliation discussions are issued to the parties. If conciliation efforts are not successful, the EEOC and/or the charging party may bring suit.

K. Under the EEOC-enforced laws, the remedies for unlawful discrimination include:

an order to eliminate discriminatory practices
hiring, wage adjustments, promotion or reinstatement, depending upon the nature of the action taken against the individual monetary remedies
Monetary remedies available under the laws enforced by the EEOC are as follows:
- lost wages and prejudgment interest (all statutes)
- liquidated/double damages (ADEA and EPA)
- compensatory damages (Title VII and ADA cases involving intentional discrimination)
- punitive damages (Title VII and ADA cases in which the employer acts with reckless disregard of the federally protected rights of the individual)
- the sum of punitive damages and future compensatory damages may not exceed the following amounts, per person:
  - $50,000 for employers with 15-100 employees
  - $100,000 for employers with 101-200 employees
  - $200,000 for employers with 201-500 employees
  - $300,000 for employers with more than 500 employees