EEOC regulations let fact finding conferences have a dual nature: facilitate additional fact gathering or to push for settlement.
An informal investigative forum not an adversial proceeding
EEOC regulations will allow an investigator to hold a fact-finding conference. The EEOC technical assistance manual tells us that a fact finding conference is “an investigative forum intended to further define the issues, determine what is undisputed, clarify disputed issues and determine what other evidence is needed.”
It’s basically, when they want to get people together to figure out, “Okay. What have we settled, what have we not settled, what is still going on here?” EEOC regulations allow it to facilitate additional fact gathering or to push for settlement.
It’s an informal investigative forum. It’s not an adversarial proceeding. The EEOC most likely will take notes of that conference. Attorneys can be present but they are not permitted to testify for their clients or to ask questions during the fact finding conference per EEOC regulations.
In the event that the investigator chooses to conduct such a conference, you should do a of couple things. First, make sure that all the employees attending or participating in the conference understand their roles. Because the EEOC is generally the only one who’s asking questions, you should consider having counsel or having whoever the company representative is submit in advance a list of questions to be asked to the witnesses.
Before you go into a fact finding conference, you should review the position statement that you’ve already submitted and everything else you’ve already submitted to determine whether any additional information should be submitted to make sure once again, that it’s all factually accurate.
If you haven’t submitted a position statement, you should, under EEOC regulations, file one in advance of the fact-finding conference.
The findings-cause, no cause, and administrative dismissal.
Once everything is submitted, the EEOC then makes a finding. They might say they have found cause to proceed. This doesn’t happen. It happens at a very low percentage of the cases that we see.
If they do find cause, you might be invited to enter into a conciliation discussion to resolve the matter. If that’s unsuccessful, then perhaps there will be a lawsuit either filed by the EEOC or the complainant.
Many, many cases are resolved when the EEOC issues a finding of no cause and a right to sue letter. The complainant receives that letter informing him or her of the right to sue in federal court within 90 days of receipt, and then that person has 90 days to file suit or in the case of the Equal Pay Act two years.
Dismissal under EEOC regulations
There might be other kinds of dismissals and then administrative dismissal under EEOC regulations: no jurisdiction that’s when the company’s too small, that person that filed the claim doesn’t really fall within one of this Title 7 protected categories or the ADA or the ADEA. The agency can’t find the complainant — something like that.
When the agency issues a no cause finding and then issues the right to sue letter, it’s on the EEOC form 161 and it typically explains the reason that the EEOC is closing its files. It explains to the complainant that they have 90 days to file a suit, et cetera.
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