Investigating the issues behind the EEOC complaint

by on May 12, 2009 · 1 Comment POSTED IN: HR Info Center

Victory or defeat in EEOC complaint investigations can be decided on several issues

Planning is key with an internal EEOC complaint investigation

Corporate size requirements for an EEOC complaint investigation
Look at our threshold requirements. First, look at the size of the company. As an initial matter, if you don’t meet the requirements, if your company is small and you don’t meet the threshold number of employees, you should call and write to the EEOC and let them know that.

And they may follow up and ask you for proof of the number of employees. But otherwise, they’ll dismiss the EEOC complaint the matter because they don’t have jurisdiction. And I have done that successfully on occasion for smaller organizations.

Timeliness of the EEOC complaint
The next thing you want to look at is timeliness. Remember, there is a limitations period. Someone has to file within 180 days or 300 of the alleged unlawful activity. So, if someone’s complaining about something that happened two years ago, that charge is going to be too late. The Ledbetter Fair Pay Act reverses the Supreme Court’s May 2007 decision in Ledbetter versus Goodyear Tire and Rubber.

In the Supreme Court’s decision, the court held that the time limit for filing discrimination charge with the EEOC or the state agency begins when an employer makes a discriminatory decision about an employee’s compensation. Not each time the employee receives a paycheck affected by an alleged discriminatory pay practice or decision.

That’s what the Supreme Court said. The Ledbetter Fair Pay Act directly overruled that case and amended the EEOC complaint filing period for title VII, The Age Discrimination in Employment Act, the ADA, and the Rehabilitation Act to provide that an unlawful employment practice occurs when either a discriminatory pay practice is adopted or an employee becomes subject to a discriminatory compensation, decision or practice, or when an employee is affected by an application of a discriminatory compensation, decision or practice including each time wages, benefits or other compensation are paid.

That means for the purposes of the conversation if somebody is claiming that they were discriminated against with respect to their pay, their last paycheck is the time period that the EEOC complaint investigation is going to look at to see if they’re within the timeliness of 180 days or 300 days. So, it’s going to open up that statute of limitations quite a lot for people in the equal pay world.

What’s on the EEOC complaint form
Now, we look to see on the form what is the EEOC asking of the company. On the notice of charge of discrimination, you’re going to typically see three boxes. One, no action is require on your part at this time. Two, please submit a position statement. Three, please respond to the attached request for information.

For obvious reasons my favorite is “no action” because of course you don’t have to do anything. I have talked to some people who feel like when they receive a no action form, they should call the EEOC just to check in. That’s a very bad idea. That’s a sleeping dog. Let it lie. You don’t need to submit anything if they say don’t submit anything.

Investigating underlying issues of the EEOC complaint.

At-will employees can be hired or fired with or without cause and with or without notice. So if we can fire someone with or without cause or notice, why do we have to investigate because what does it matter what we fire him or her for?

The answer to that is everybody has a race, color, religion, national origin and gender. If we fire somebody, sure they’re at-will but we cannot hire – we cannot fire somebody for a discriminatory reason.

If somebody gets fired and says you fired me based on my national origin, we want to be able to show that we had a legitimate non-discriminatory reason for our action or they can file an EEOC complaint. We took seriously when somebody raised a concern and investigated it and made sure that nothing discriminatory in nature was going on. That our actions were all above board because although the at-will doctrine is the baseline that people use to say yes, you don’t have a job for life or something like that. We never want to sit around and try and test it by just firing without a reason.

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 February 04, 2009

1 Comment on This Post

  1. Reynaldo Rivas
    July 10, 2015 - 2:17 pm

    Great article. Thanks for the info, very helpful. BTW, if anyone needs to fill out a EEOC complaint form, I found a blank form here:

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