DP's Office

Defending Discrimination Charges

August 2006, Auto Dealer Today - WebXclusive

by Ron Smith - Also by this author

In this modern, politically correct world, the types of charges that may be leveled at an employer by an employee almost seem to increase daily. The government would have us believe that discrimination lurks around every tree and bush. Looking cross-eyed at an employee is akin to harassment. Unfortunately, from an employer's standpoint, you're guilty until you prove yourself to be innocent. Then what is the best procedure to defend claims should one arise? Many times an employer will try to submit a written position statement to the EEOC or the State Civil Rights Commission (or local human rights commission, if applicable), Department of Labor, NLRB or any other investigative agency. If you aren't getting help from competent counsel, then part and parcel of every charge that is filed requests than an employer submit a written position statement by a particular date. Our experience has shown that many cases are won or lost at this initial stage. Hastily prepared or incomplete position statements can come back to haunt employers. Thorough investigation of any charge or a potential charge is an absolute necessity. Why? Under federal law, an employee has 300 days to file a charge from the last adverse employment action. The filing deadline starts to run when an employee becomes aware of the adverse action, even though it may actually occur later. The filing deadline may in fact be extended for equitable reasons. For example, one such filing time was extended because the EEOC posters were not appropriately posted in the place of business. If the EEOC wishes, then it may still conduct an investigation even after the 300 day filing period, since the filing deadline bars only filing suit in federal court. Those of you that have gone through these cases know that handling claims before the EEOC or Civil Rights Commission can be just as burdensome as going to court.
Written position statements are critical because they establish a framework for the investigation by the agency and for the employer's defenses. If they are incomplete or incorrect, then they can be used against you at a later hearing or trial. Also, in the automobile business, there is a relatively high turnover. This means that many witnesses that might be favorable to your position may have quit or their employment may have been terminated. In any event, they may be less likely to want to assist you if they are not in your employment. Therefore, it is an excellent practice to get witness statements anytime that you terminate the employment (or take adverse employment action) of any individual that you suspect might later bring a charge of discrimination. Most discrimination charges will be filed within a couple of months of the termination. However, occasionally, charges of discrimination are brought at a later time. For example, we have one case now where the charge was brought after the employer filed suit to collect on a bad debt owed by the former employee. When you receive the discrimination charge, my advise would be to contact competent counsel right away.
It is necessary to conduct a full and complete investigation, take written statements and prepare an all-encompassing position statement. You must prepare it as you would if you were going to court. As stated before, some witnesses may no longer be in your employ and at best because of the time lapse, many recollections will be dulled by the passage of time. It is not unusual for several months, even a couple of years, to pass before the agency pursues its investigation after submission of the written position statement. For example, the head of the Indianapolis EEOC recently told a committee of which I am a member that the average investigator has about 145 cases to investigate. The normal investigation caseload for 6 months is about 40. Therefore, you can see what the time factor means. The agencies involved here in Indiana generally readily grant one or two extensions of time to respond. Again, statements should be sought from fellow workers in plain, general terms. There may be multiple reasons for your good faith legitimate business reason to take action against someone's employment, and you should not narrow your defense to one or two items. Many times, however, the agency will ask for more information than they are entitled to. This is where counsel once again comes in. Sometimes you just have to refuse some information they request as being immaterial to the case. It is in your best interest to keep the agency's investigation as narrow as possible.
In summary, good preventive personnel practices are the best defense, but even those can't insulate you from a disgruntled employee's charges. We've been successful in getting about 98 percent of these cases dismissed, because of good investigative procedures, taking good statements from witnesses and the compilation of a good position statement supplemented by legal authority.

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