Recently, CAI members had the opportunity to learn more about Equal Employment Opportunity Commission (EEOC) charges during our Ask the Expert programs. The EEOC enforces Title VII, which prohibits discrimination or harassment based on age, disability, genetics, national origin, pregnancy, race/color, religion, or sex. Title VII also protects employees from retaliation for complaining about discrimination or participating in an investigation.
EEOC officials Thomas Colclough, Jose Rosenberg and Tina Burnside took questions from the audience and provided insight on the EEOC investigative process. Some of the key points from the presentations include:
1. Categories of Charges. The EEOC prioritizes charges as category A (charges that fall within the national or local enforcement plan, or other charges that will likely result in a cause finding), category B (charges that require additional information to determine the merit of the charge) or category C (charges suitable for dismissal).
2. Employer Notice. If a charge is filed against an employer, the employer will receive a Notice of Charge form from the EEOC within 10 days. The Notice of Charge will include the name of the employee making the charge, the nature of the charge, what action is required by the employer and the date that a response is required.
3. Mediation Option. Mediation is free and conducted by EEOC mediators or contracted mediators, and the parties (employer and employee) decide on the course of action (facilitated by mediators). There is no decision on “fault.” The mediator drafts an agreement based on the negotiated settlement by the parties, and all parties sign the agreement, which is binding. Unsuccessful mediation will result in the charge going back into the investigation process. Category A charges are not eligible for mediation.
4. Investigation Process. The investigation process may include a request for a Position Statement, Request for Information (RFI), a Fact-Finding Conference, witness interviews, document review, on-site investigation, predetermination settlement discussions (if EEOC finds fault by the employer), and/or subpoena.
5. Position Statement. Employers are normally given 30 days from the date the Notice of Charge is mailed to respond to the EEOC with a Position Statement. The Position Statement is one of the most critical documents the employer submits to the EEOC. Employers should spend time developing the Position Statement to answer each issue raised by the charging party.
6. Conciliation. If the EEOC determines there was merit to the charge after the completion of the investigation, a Letter of Determination will be issued to the parties to invite them to participate in conciliation. The settlement may include damages such as back pay, front pay, hiring, reinstatement, promotion, reasonable accommodation, attorney’s fees, and non-monetary relief like training, as well as a provision not to discriminate. The conciliation agreement includes a provision prohibiting the charging party from disclosing details about the settlement. These agreements are binding and enforceable in court.
7. Settlement. Settlement of the charge may be made at various points in the process. If settled after a lawsuit is filed, the settlement is not confidential. In this case, the EEOC settles by Consent Decree, and the court monitors the agreement for three years.
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