Internal investigation of EEOC cases needs to go hand in hand with position statement authorship
- Is this a surprise?
If the answer is yes, there are occasions where that might be a good thing but often it is not.
- Did the employee complain to a manager prior to the EEOC cases?
If you’ve got EEOC cases coming out of left field, it could mean that this employee or former employee hasn’t complained to anyone, nobody knew there was a problem; they didn’t really follow our policies.
- Did the employee say anything to the manager?
Frequently, it means is that the employee did complain to a manager and used the following sentence or a variation of the following sentence “please keep this a secret”. I guess you all recognize this because of the fear it strikes in the hearts of Human Resources professionals everywhere. The employee says, “Please keep this a secret” to the manager. The manager does, consequently, the company didn’t find out about it until this charge. At the end of your investigation, you’re going to need to have a serious chat with the manager who promised secrecy and explain why keeping things a secret is a problem. It’s against company policy, et cetera. Save that for the end because you are probably going to need this manager’s cooperation. You’re unlikely to get it if you’re beating them over the head with the fact that they did wrong.
- How will I need to ask questions during the internal investigation of EEOC cases?
When investigating EEOC cases and complaints, you will need to gather facts. Ask open-ended questions like a journalist – who, what, where, when, and why. Avoid putting people on the defensive to the extent that’s possible because you want them to open up and talk to you.
- Should you speak to the complainant in EEOC cases?
One thing to decide is whether you’re going to talk to the complainant, the person who raised the issue. As a practical matter, if the person doesn’t work for the company anymore, you can try to talk to them. However, your success rate is likely to be either zero or close to it. Because this person, has no obligation he’s going to talk to you. Still, give it a shot so you can say that you did try because you do want to follow up on things when you find out about them.
If the person does work for the company and if this is first you’re hearing of a particular problem, contacting that employee to discuss the issue may be good. Now, the employee may refuse to talk to you. The employee also may refuse to talk to you without a lawyer. If you get a request for a lawyer to be present, please confer with your own lawyer before just saying no. Most of the time the answer is going to be no, we don’t allow lawyers to participate in this kind of thing. Sometimes, you might want to allow it. So, that’s talking to the complainant. Obviously, you’re also going to want to talk to relevant witnesses, you’re going to want to review company policy and document any of the meetings you have.
Edited remarks from the Rapid Learning Institute webinar: “EEOC Charges: How to Prepare an Airtight Response and Avoid Costly Payouts” by Alyssa T. Senzel, Esq. on 2-7-2008
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