Remember in your EEOC complaint investigation to ask open ended questions.
- Who will you question in the EEOC complaint investigation?
Now, one thing you’re going to have to decide at this point is whether you’re going to talk to the person who filed the EEOC complaint or the charging party or both. If the person no longer works for your company, you can try to speak with them. But your success rate is likely to be very close to zero.
- Did the person who filed the EEOC complaint still work for you?
If the person does work for you, and this really is the first you’re hearing of a problem, you should contact the employee to discuss the matter. Human resources should call the employee to discuss.
- What happens if the person who filed the EEOC complaint wants a lawyer
The employee may refuse. They may refuse to talk to you or they may refuse to talk to you without a lawyer. If you get the request, “I want my lawyer”, talk to your own lawyer whether that’s your in-house counsel or your outside counsel before responding to that request because sometimes in some cases, you might want to actually allow that lawyer to be present. I’m not saying all the time but it’s worth looking into before just answering absolutely not.
- What is discoverable from the investigation in court?
When you’re conducting an investigation, you need to talk to relevant witnesses to the EEOC complaint, you need to review company policy and document your meetings. Everything you do is going to be discoverable in court. If it gets into litigation; your notes, your documents, the other side is going to be able to see them unless they’re covered by the attorney-client privilege. But assuming they’re not, they’re going to be discoverable so you should take them in a way that recognizes that fact.
Very important as you’re investigating, don’t retaliate for the EEOC complaint. And warn others not to retaliate as well. A situation several years ago involved a woman who still worked at the company and she had filed a charge. The crux of that charge was that she has been discriminated against based on race because she was passed up for a promotion. That’s what she said. She never applied for a promotion; there had not been any promotion to apply for.
- Who do you need to tell about the EEOC complaint investigation?
So you’ve got the charge, you want to investigate. One of your preliminary questions is going to be, “Well, who do you tell about this?” You’re going to tell your general counsel, if you have one or your in-house counsel, or outside counsel if you work with them on such matters, they may actually want to issue litigation-hold letter informing certain people not to destroy e-mails and other documents that are going to be relevant to the proceeding.
If you have employment practices liability insurance, you’re going to want to inform your insurance company. Sometimes an EEOC charge is a trigger and you do have a notice requirement for your insurance. Other than that, you’re going to tell those who need to know but only those who need to know. You’re not going to post a sign up about “Hey, whoever has knowledge about this person’s complaint, come see me” because that is beyond the scope of what you need.Who you tell is probably going to differ depending on whether or not the individual is an applicant, an employee or a former employee. So it’s really a case-by-case determination.
It also may differ depending on what the EEOC is asking of you. For example, in the story I told you a minute ago with the woman who said she was passed up for promotion because of her race, the EEOC told the company that no action was required at that time. Because of that, we had much less information to share with people than if we were doing – collecting information for a position statement. So think about who you need to tell.
Edited remarks from the Rapid Learning Institute webinar: “In EEOC’s Crosshairs? How to Prepare an Airtight Response and Avoid Costly Payouts” by Alyssa T. Senzel on 8-5-08
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