Be sure to cooperate with the EEOC
Sometimes the EEOC will ask the
employee to provide additional information about his or her claims. On occasion, the
employee will refuse to cooperate. If this happens and suit is later filed in federal
district court, the employer may be able to get the court to dismiss the lawsuit on the
basis that the employee's failure to cooperate with the EEOC constitutes a failure to
exhaust administrative remedies. It is very unusual for an employee not to cooperate, but
don't make that mistake.
The ins and outs of an EEOC investigation
Of course, it varies depending upon
the case. But generally, the EEOC will have the employee submit whatever information she
has in support of her claim. The EEOC will then send the employer a letter requesting
certain information. Sometimes hundreds or thousands of pages of documents are requested.
The employer is also invited to set forth its position in a letter to the EEOC.
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Tip for
Employers
Before responding to the EEOC about why the
employee was terminated (for example), the employer must be absolutely sure that the
reason or reasons it gives to the EEOC are correct. Sometimes the person given the task of
answering the EEOC charge on behalf of the employer was not involved in the decision to
terminate the employee. As a result, through human error, the employer's response as to
the reason for the termination is occasionally incorrect. For example, perhaps the reason
given in the response to the EEOC is that the employee's position was abolished as part of
a reduction in force. But by the time of trial, the employer's defense is that the
employee was selected for termination based on poor job performance.
At trial, plaintiff's counsel will argue to the
jury that this inconsistency is proof that the employer's reasons for the termination are
false and that the real reason is discrimination. Don't let a sloppy EEOC response get you
in trouble at trial. |
What happens at the end of an EEOC
investigation? Well, sometimes the EEOC never gets to the conclusion. After 180 days have
expired, an employee can request that the EEOC send her a right to sue letter whether the
EEOC has concluded its investigation or not.
If the EEOC completes its investigation, then it
will either find that "reasonable cause" exists that the employee was a victim
of discrimination or that reasonable cause does not exist. If the EEOC finds that
reasonable cause does exist, it will try to get the parties to resolve the problem. If the
problem is not resolved, the EEOC can file suit in its name on behalf
of the employee. But most of the time, the EEOC just issues a right to sue letter, and the
employee decides whether to proceed with filing suit or not.
If the EEOC completes its investigation and
decides that there is not reasonable cause to believe that the employee was a victim of
discrimination, the employee is still entitled to have the EEOC issue a right to sue
letter and the employee can still proceed with suing the employer in federal court.
Of course, when an employee receives a right to
sue letter, he or she only has 90 days in which to file suit.
