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Defending and Resolving Discrimination Charges: A Comprehensive Guide

This guide provides essential insights into defending against discrimination charges. Learn the structure of the EEOC, key steps in managing a charge, and understanding jurisdiction. Discover how to conduct effective investigations with proper documentation, identify witnesses while minimizing retaliation risks, and prepare responses to the charging party's claims. Explore mediation opportunities, the selection of mediators, and special considerations unique to employment mediation. These strategies help ensure a fair process and facilitate resolution while managing the emotional and financial costs involved.

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Defending and Resolving Discrimination Charges: A Comprehensive Guide

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  1. Defending & Resolving a Charge of Discrimination Margaret M. (Peggy) Koesel Conflict Resolution Mediator l Attorney l Counselor

  2. Structure of the EEOC • District director and regional attorney • Supervisory investigators • Investigators • Legal unit • Mediation unit

  3. When you receive a Charge • Is it timely? • Does the EEOC have jurisdiction? • What are the allegations? • What are the available resources? www.eeoc.gov

  4. Learn the facts related to the Charge • Is an investigation necessary? • Should you take any interim action during the investigation? • If so, possible interim actions?

  5. Plan who, what, when and how • Who is the most appropriate investigator? • What investigation techniques? E.g., • interviews • surveillance • document review

  6. Plan who, what, when and how • Who should be interviewed • What documents and data should be: • collected, • preserved, and • reviewed? • How will the results be documented?

  7. Preserve documents and electronic data • duty to preserve documents and personnel records • spoliation and adverse inferences

  8. Who to interview • Company representatives who may have evidence regarding unlawful conduct • Charging party??? • Company representatives who allegedly engaged in unlawful conduct

  9. Minimize risk of retaliation claims If you interview the Charging Party: • tell EEOC you plan to • interview consistent with your regular process • focus on the allegations, not the Charging Party

  10. Minimize risk of retaliation claims • Interviewer should be outside witnesses’ or CP’s chain of command • Keep information obtained for a witness confidential and unavailable to witness’ boss

  11. Minimize risk of retaliation claim • Request that witness not disclose substance of statement to others • If discipline of a witness is required, confirm the discipline is consistent with policies

  12. Minimize risk of retaliation claims • remind about policy against retaliation • provide contact information

  13. Responding to the Charge • briefly summarize the CP’s claim • set forth the facts from the Company’s investigation • explain why the CP’s claim lack’s merit • summarize and request that the Charge be dismissed with an no probable cause finding

  14. Responding to the Charge • include evidentiary materials • documents and statements

  15. FOIA Requests • Freedom of Information Act • Expect CP’s lawyer to make such a request • Lawsuit position must be consistent with Charge position taken in

  16. EEOC’s decision • violation • EEOC decides whether to litigate or issue a notice of the right to sue • no violation • EEOC issues a notice of the right to sue

  17. Opportunities for resolution • at time Charge is filed • after determination of merits of Charge

  18. Why mediate? • Faster resolution • Financial cost • Emotional cost • Control the outcome

  19. When to mediate • At the Charge stage • At the lawsuit stage • Pre-discovery • Early, limited discovery • At the close of discovery • On the eve of trial

  20. Selecting a mediator • Consider the participants • Look for someone who is: • Credible • Committed • Creative • Closer

  21. Preparing • Mediation statement(not at EEOC) • Advance work with the mediator • Prepare your client • Understand possible damages • Confer with your insurance carrier

  22. Bring the right people • Attend in person • Bring a person with settlement authority • Bring people who know the issues • Don’t bring

  23. When you arrive

  24. Help the mediator help you • Make an opening statement • Listen to your opponent’s opening • Tell the mediator the “story” • Plan to talk

  25. Watch the heat

  26. Special Concerns in Employment Mediation • Emotions • Confidentiality • Spouses • Creativity

  27. Uniform Mediation Act • Confidentiality • Prohibits others from testifying • When is mediation not private • Other protections

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