Be very careful and factual in your EEOC charge investigation
An out-of-the-blue EEOC charge
When you get a EEOC charge, one of the first things you should be asking yourself is, hey, is this a surprise? And if the answer is yes, sometimes that actually may be a good thing, but oftentimes, it’s not. Because when it could be a good thing, if the EEOC charge comes out of left field, it could mean that the employee has not complained to anyone and no one, legitimately, knew that there was a problem.
That surprise EEOC charge may work in your favor, if you’ve got policies and procedures where people need to complain about things and this person hasn’t. But, frequently, as I’m sure you know all too well, when you don’t know about something, what it means is that the employee did complain to a manger and used the following sentence or a variation of the following sentence.
What you don’t want to hear with an EEOC charge
This is a sentence that strikes fear into the hearts of human resources professionals everywhere. The person said to their manager, hey, please keep this a secret. And of course, the manager did. So, if this happens, and you uncovered this during the investigation, make a note to yourself that at the end of your process, you’re going to need to have a discussion with the manager who promised secrecy and explain very plainly why keeping things a secret is a big problem.
EEOC charge investigations thrive on facts
The EEOC charge investigation requires that you’re going to need to gather facts. To do that, you want to ask open-ended questions. Act like a reporter, who, what, where, when and why. You want to avoid putting people on the defensive to the extent you possibly can, because you want them to be talking to you. Let them do most of the talking.
So, if you are asking questions and you’re finding that you’re sitting there doing most of the talking, stop and refocus. Think about how can I ask questions designed to elicit the most information.
Questioning players in the EEOC charge investigation
When you’re asking questions, you’re going to be talking to witnesses and one thing you’re going to have to decide is whether you’re going to talk to the complainant or the charging party.
Now, if the person doesn’t work for you anymore or in the case of an applicant who never worked for you, you can try to talk to them, but your success rate, realistically, is likely to be zero. This person is unlikely to be happy to be chatting with you. But, they might.
If the person does work for the company and this is the first you’re hearing of this problem, you should call the employee to discuss it. This is what you would do if you heard through normal channels in a work place. The employee may refuse to talk to you or may refuse to talk to you without a lawyer. If you get that lawyer request, there’s no requirement that we allow lawyers into internal investigation meetings and other meetings that are internal to our work place. However, those being said, if you get a request for a lawyer, talk to your own lawyer. Sometimes you may want to allow an employee to have his or her lawyer sit in. I mean that’s a call for your own counsel.
Be careful and through
In the course of your investigation, you’re going to talk to relevant witnesses. You’re going to review company policy and you’re going to document your meetings. And remember, when you’re doing your documentation, that everything you write and everything you say is going to be discoverable, unless it’s done with your lawyer. Be very careful about what you’re writing down and you want it to be very factual and know that if this ever got into a lawsuit, you might have to turn it over.
These are the edited remarks from the Rapid Learning Institute webinar “EEOC Charges: How to Prepare an Airtight Response and Avoid Costly Payouts” by Alyssa Senzel, Esq. on Feb. 14, 2007
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