You may find it difficult to believe, but there are ways that an employer can win a discrimination lawsuit brought against it by the Equal Employment Opportunity Commission (EEOC), according to one of the nation’s top employment lawyers.
Robin Shea, a partner with the law firm of Constangy Brooks Smith & Prophete, usually beats the drum to remind employers about the many ways that you can get into hot water with the commission. However, this time she recently chose to take a more positive approach to navigating what all too often turns out to be a thoroughgoing nightmare for an employer.
Although the commission will continue to enjoy a majority of Republican commissioners until July, the EEOC never stopped vigorously enforcing civil rights laws. As we have seen over the past two years, events have thrown issues involving discrimination into high relief, and made employees more aware of their rights and how they may be violated.
If you are an employer and are facing a complaint that has developed into a federal case, these are some good ways to handle the situation, according to Shea.
No. 1: Stay positive. You can win an EEOC charge, and even an EEOC lawsuit, especially if the agency seems to be litigating only because you happen to be on the wrong end of one of its “hot” causes, she stresses. “Nobody is perfect. That goes for the EEOC, too.”
No. 2: Explain it all, like you would to a two-year-old. When the EEOC gets a charge, all that the investigators know about what happened is what the complaining employee said. Not only don’t they know your side of the story, but they may not know anything about what you do or about your industry.
That background may help to explain why your actions were legitimate and non-discriminatory, Shea says. “In all of your dealings with the EEOC, and especially when writing your position statement, be sure that you fully and in plain language explain all the relevant background information. Avoid jargon and acronyms as much as you can, and when you can’t avoid using them, explain what they mean. You will generally not go wrong by trying to make the investigator’s job easy.”
No. 3: Tell the truth—the whole truth. All too often when employers terminate an employee for cause they call it a “job elimination” because they don't want to hurt anyone’s feelings or are terrified of a potential lawsuit. Then the employer immediately replaces that person and their story quickly falls apart.
If you terminated an employee for misconduct or poor performance, then say so. If it was partly for “cause” and partly for economic reasons, then say that. If it was a termination for cause but you are calling it a “job elimination” to allow the employee to get a severance package and unemployment, then say that, too, she urges.
No. 4: A “request for information” by the EEOC does not necessarily mean you are about to lose. “Chin up! Often, when the EEOC asks an employer for more information, it is ready to throw out the charge and just needs to dot a few more i’s and cross a few more t’s before it can do so,” Shea reveals. “Unless the request is truly unreasonable, comply politely. Don’t worry. Be happy.”
No. 5: Generally, you can be pleasant with the EEOC. She emphasizes that most investigators will be much easier to deal with if you are courteous and pleasant with them. “Even if you disagree with their position or don’t intend to provide certain information they’ve requested, you can ‘just say no’ respectfully. No need to go all scorched-earth.”
No. 6: Get a lawyer. Yes, lawyers say this all time when giving employers law advice, she admits. “Is it a shameless self-promotion if it’s true? If your company doesn’t have an in-house employment lawyer, get outside counsel even if the charge seems trivial,” Shea advises.
“You don't want to blow it and have the agency out for your blood. And even if the charge is dismissed, the charging party can still go out and hire a lawyer and sue you in federal court. If you did a sloppy response to the EEOC charge, the employee’s lawyer will see that, and then he’ll be out for your blood.”
Without an attorney to advise them, employers can do things like inadvertently admit to violation of another EEO or a non-EEO law, and present “facts” that turn out to be wrong. It’s also easy to provide too much information, giving the EEOC an excuse to go fishing, or not enough information, making you look evasive and support the idea that you haven’t handled the situation well.
“One other thing about having a lawyer,” Shea says. “This is purely anecdotal and unscientific, but I swear that the EEOC investigators behave better when the employer is represented by counsel. So, even if you don’t need a lawyer for any other reason, you may want a lawyer for that.”