Here’s the “carrot,” after last week’s “stick.”
Last week, I wrote about the “Notorious Nine” mistakes that employers make when dealing with the Equal Employment Opportunity Commission. Today I’ll be more positive, and give you the “Sweet Six” tips for winning your discrimination charge or EEOC lawsuit.
No. 1: Stay positive. You can win an EEOC charge, and even an EEOC lawsuit – especially if the agency seems to be litigating only because you happen to be on the wrong end of one of its “hot” causes. Last week, I noted that nobody is perfect. That goes for the EEOC, too.
No. 2: Explain it all, like to a two-year-old. When the EEOC gets a charge, all it has is what the charging party said. Not only does the investigator not know your side of the story, but he or she may not know anything about what you do or your industry. And that background may explain (or, at least, help to explain) why your actions were legitimate and non-discriminatory. In all of your dealings with the EEOC, and especially when writing your position statement, be sure that you fully and in plain language explain all the relevant background information. Avoid jargon and acronyms as much as you can, and when you can’t avoid using them, explain what they mean. You will generally not go wrong by trying to make the investigator’s job easy.
No. 3: Tell the truth, and also the whole truth. Employers do this a lot, and it drives me crazy: They are terminating an employee for cause, but because they don’t want to hurt anyone’s feelings or are terrified of the possibility of a lawsuit, they call it a “job elimination.” That story falls apart very quickly when the employer immediately replaces the employee whose job was “eliminated.”
If you terminated an employee for a misconduct, poor performance, or whatever, then say that. If it was partly for “cause” and partly for economic reasons, then say that. If it was a termination for cause but you are calling it a “job elimination” to allow the employee to get a severance package and unemployment, then say that. (And be sure the severance agreement says that’s what you’re doing. And always be truthful with your unemployment agency. Put that in your severance agreement, too.)
This is a true story. A former employee was suing for age discrimination. The employer claimed that the plaintiff-employee was terminated because of a “job elimination.”
The plaintiff’s job? President of the company. “Job elimination”? Riiiiight.
Honesty really is the best policy. It’s a cliché for a reason.
No. 4: A “request for information” from the EEOC does not necessarily mean you are about to lose. Chin up! Often, when the EEOC asks an employer for more information, it is ready to throw out the charge and just needs to dot a few more i’s and cross a few more t’s before it can do so. Unless the request is truly unreasonable, comply politely. Don’t worry. Be happy.
No. 5: Generally, you can be pleasant with the EEOC. Some investigators may require a little “tough love,” but they are in the minority. Most will be much easier to deal with if you are courteous and pleasant with them. Even if you disagree with their position or don’t intend to provide certain information they’ve requested, you can “just say no” respectfully. No need to go all scorched-earth.
No. 6: Get a lawyer. (Is it a shameless self-promotion if it’s true?) If your company doesn’t have an in-house employment lawyer who can advise you, get outside counsel, even if the charge seems trivial. You don’t want to blow it and have the agency out for your blood. And even if the charge is dismissed, the charging party can still go out and hire a lawyer and sue you in federal court. If you did a sloppy response to the EEOC charge, the employee’s lawyer will see that, and then he’ll be out for your blood.
Here are examples of some employer mistakes that can turn little charges into big disasters:
- Inadvertently admitting to violation of another EEO law, or a non-EEO law.
- Providing too much information, which gives the EEOC an excuse to go “fishing.”
- Not providing enough information, which makes you look evasive and may also hurt your case if you leave out facts that show you handled the situation well.
- Presenting “facts” that turn out to be wrong.
- Calling a termination for cause a “job elimination,” which causes the investigator to infer that the real reason for the termination was an unlawful one. (See No. 3.)
- And much, much more!
One other thing about having a lawyer. This is purely anecdotal and unscientific, but I swear that the EEOC investigators behave better when the employer is represented by counsel. So, even if you don’t need a lawyer for any other reason, you may want a lawyer for that reason.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.
