Ask open ended questions to get the best answers to questions about your EEOC charge
When you get a notice of an EEOC charge, you’ll see that it has three basic boxes.
The EEOC charge notice has three boxes: One says, no action is required on your part at this time. The next one says, please submit a position statement. The third one says, please respond to the attached request for information.
For obvious reasons, no action is best when your receive an EEOC charge. Some lawyers and HR people feel that when they receive a no action letter, they should still call the EEOC just to check in. It is a horrible idea. They don’t want anything from you. You should just let that one lie and do not be proactive in that particular situation. In most cases, you will not get a “no action” letter.
Your position statement investigation to the EEOC charge should answer these questions.
When you receive an EEOC charge, one of the first things you should be asking is, hey, is this a surprise? If the answer is yes, sometimes that might actually be a good thing, but many times, it isn’t.
If you get an EEOC charge that comes out of left field, it could mean that this employee has not complained to anyone and thus, nobody knew that there was a problem.
That’s good. They didn’t use your system. They were supposed to use the system. You would have fixed the problem if you’ve known about it.
But, frequently, if you didn’t know about it, it means that the employee did complain to a manager and used the following sentence or variation of the following sentence: “Would you please keep this a secret?”
The employee said that to the manager and the manager kept the secret. Now, if you find that that happened, make a note to yourself that at the end of your investigation, you’ll need to have a serious talk with that manager, who promised secrecy and explain why keeping things a secret is a big problem.
The allegation might be a surprise, it might not be. If the allegations are, you might want to figure out how to prevent that from happening in the future.
If there’s something someone’s complained about such that there’s already been an investigation. If not, you need to investigate the EEOC charge.
How should you conduct the internal investigation about the EEOC charge?
You will gather facts as part of your EEOC charge investigation. To do that well, you need to ask open-ended questions like a good journalist: who, what, where, when and why. You want to avoid to the extent possible putting people on the defensive, because what you’re hoping for is that they’ll open up and start talking to you.
One thing you’re going to have to decide is whether you’re going to try to talk to the complainant. If the person does not work for you anymore, you can try and you should try to speak with them. Your success rate is likely to be zero or very close to it. Because once they’re gone, they’re very unlikely to speak with you.
In a situation where the employee still does work for you and this is really the first you’re hearing of a problem, you should call that employee to make an appointment to discuss it. That employee may refuse to talk to you. They may also refuse to talk to you without a lawyer. If you get the request for a lawyer, talk to your own lawyer before responding. The reason being, in an internal investigation, employees do not have the right to have a lawyer present. In some circumstances, your own counsel may decide that that’s a good route, that they may allow the person’s counsel to be present during an investigation process. You don’t want to be making that decision on your own. You want to be making that decision with counsel.
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