An EEOC charge has been filed against your company. What now?

The Equal Employment Opportunity Commission announced last month that it has launched an online inquiry form.Alyssa Peters

The online system is in the testing phase and available for only five offices: Charlotte, Chicago, New Orleans, Phoenix, and Seattle. Whether this new system will result in more charges is yet to be determined, but my guess is that it will do so dramatically! The purpose behind the system is to “make the EEOC much more accessible to the public,” according to the agency's Acting Chair, Victoria Lipnic. Currently the EEOC receives more than 585,000 calls a year. With that many reported calls, one can only imagine how many calls are dropped or cancelled when the caller loses patience with the looping elevator hold music.

Greater ease in filing EEOC charges means that this is a good time for employers to review what to do when a company receives a charge. Here are some tips:

  1. Don’t ignore it! The EEOC almost never sends a charge to the registered agent of a company. Sometimes, especially with small employers, the charge will end up at the receptionist’s desk or some other random location. Don’t let the charge fall through the cracks. Enter the response deadline in your calendaring system. Then go onto the EEOC web portal and enter the contact information of the appropriate company representative. That will ensure that the EEOC communicates with the right person.
  2. Contact your insurance company. If your company has Employment Practices Liability Insurance, the expenses incurred in responding to the charge may be covered or counted toward your deductible. If you are not sure whether you have EPLI, contact your broker. You have a limited amount of time to notify the insurer once you are on notice of a potential lawsuit, and an EEOC charge puts you on notice. You don’t want to skip this crucial step in case the charge turns into a lawsuit, possibly putting your company on the hook for the defense costs and any judgment that is entered.
  3. Contact your attorney. If you have an employment attorney, promptly notify him or her of the charge. If you do not have an employment attorney, seriously consider retaining one. You can represent yourself at the EEOC stage -- or you can be represented by an attorney who is not an employment lawyer -- but it is best to have the help of someone who is familiar with the applicable law and the agency processes.
  4. Gather all of your information/documents. Receiving a charge usually triggers what attorneys consider “litigation hold obligations." That is a fancy term for preserving documents that may be relevant to the dispute. In addition to paper documentation, it is important to preserve emails, text messages, and relevant social media sites from automatic destruction. (In the case of social media sites or web sites, you may have to "preserve" by taking screen shots.) Consult with your IT department or whoever performs your IT work. Any "default" destruction of electronic evidence should be deactivated while the charge is pending, and possibly longer.
  5. Decide whether to mediate. There are pros and cons to mediation, as opposed to submitting a response to the charge and letting the EEOC issue its determination. The EEOC has a good mediation program that is free to both parties and can often result in resolution of the charge before the costs and hostilities escalate too much.

Receiving a charge is never fun. But being knowledgeable about first steps helps ease the pain. Cross your fingers and hope that the new inquiry portal won’t have too much impact on the volume of filed charges!

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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