Defending & Resolving a Charge of Discrimination

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

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

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

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?

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

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?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When you arrive

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

Watch the heat

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

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

Defending & Resolving a Charge of Discrimination