Oh No! … It’s an EEOC Charge! How to Respond Effectively.

1. Oh No! … It’s an EEOC Charge! How to Respond Effectively. HR Women’s Breakfast Briefing June 11, 2008 Washington, DC Kara M. Maciel, Esq. kmaciel@ebglaw.com

2. Trend In Rise of EEOC Claims • In 2007 – 82,792 EEO Charges filed (almost 10% increase from 2006) • 37% Race • 30.1% Gender • 23.2% Age • 21.4% Disability • 3.5% Religion • 32.3% Claims Included Retaliation Source: EEOC www.eeoc.gov/stats

3. Trend Over Last 10 Years • Race, Sex claims have remained at or around same levels over the last 10 years • Growth has occurred in the number of Religion, Age, and National Origin claims • Retaliation has seen the largest increase in claims Source: EEOC www.eeoc.gov/stats

4. Hot Issues for 2008 CARE GIVER RESPONSIBILITY • New Guidelines issued by EEOC on Care Giver Responsibility Discrimination in 2007 • Increased rise in pregnancy / maternity leave discrimination

5. Care Giver Responsibility • What is Care Giver Responsibility Discrimination? • Plaintiff alleges that the employer discriminated against him/her based on the employee’s care giving responsibilities • Currently no Federal law addresses Care Giver Responsibilities • Suits mainly brought under Title VII/Gender Discrimination, Pregnancy Discrimination Act, ADA, or FMLA • 48 of 50 states and District of Columbia have seen such cases litigated in their courts

6. Statistics and Figures • 92% of Care Giver Responsibility cases are filed by women • 62% of these plaintiffs are blue collar non-professional workers • Care Giver Responsibility plaintiffs obtain a judgment 50% of the time, compared with a 20% rate of success for discrimination cases overall • 54% of such cases result in judgments of $100,000 or more • Currently about 100 Care Giver Responsibility cases are pending in the U.S. Source: http://www.uchastings.edu/site_files/WLLDreport.pdf

7. EEOC Handling EEOC Cases

8. EEOC — Federal Laws Covered • Title VII (race, color, national origin, gender and religion) • DCHRA (family responsibility, marital status, political affiliation, etc.) • ADA (disability) • ADEA (age) • Individual Claims vs. Class Claims • Disparate Treatment vs.Disparate Impact

9. EEOC — Charge • A charge can be filed by any person or organization claiming to be aggrieved • Any one person on behalf of a class • A member of the EEOC

10. Statutes of Limitations • EEOC Charge — 180 days or 300 days if claims are dual filed with DC Office of Human Rights; • Court Complaint — 90 days after right to sue letter issued by EEOC • DCHRA – Employee can bypass administrative procedures and pursue claims directly in D.C. Superior court

11. EEOC — Responding to Charge Only Conducts Investigations(no hearings or trials) • Do not ignore the charge • Notify your EPLI carrier • Notify key players to preserve documents • Is the charge timely? • Clock begins to run when charging party is given notice of the alleged discriminatory act • Assess whether it is wise to pursue settlement or mediation • Plan internal investigation and ensure no retaliatory action is taken • Prepare position statement

12. General Mediation Program • Assess whether to participate in Mediation • Cost effective as no position statement required • Does the charge contain allegations that are a “hot topic” for the EEOC? • Does disclosure of witnesses or company documents weigh in favor of early resolution? • Neutral Mediator not Investigator Mediates • Sometimes its best to resolve the case before it gets in front of the investigator • Confidential • Not an Admission of Wrongdoing • Universal Agreements to Mediate • New mechanism to mediate all charges with EEOC

13. Employer Internal Investigation • Immediately begin your internal investigation • Review Documents • Interview Witnesses • Ensure no retaliation • Draft Position Statement

14. Review Documents • Personnel files (for the charging party, supervisors, decision-makers, and similarly-situated employees); • Personnel policies and procedures (and signed acknowledgments of receipts of the charging party); • Grievance files, written disciplinary warnings, and internal complaints;

15. Review Documents (Cont’d) • Supervisor’s Files; • Medical Files (if applicable); • Statistical Analyses; and • Other documentation relevant to the case.

16. Interview Witnesses • Interview witnesses with relevant information: decision-makers, management, non-management, and HR personnel • Maintain confidentiality of investigation

17. Position Statement (Purpose) • Gives context to the Charging Party’s allegations • Tells a story – make it easy to read and follow • Gives explanation for employer’s actions (with supporting documentation) • **Free discovery for employee’s lawyer**

18. The Position Statement (Statement of Facts) • Give context • Department Background • Job Duties • Quote Applicable Policies & Procedures • Tell a Story • Introduce key players/decision makers • Discuss employee’s problems or issues • Explain reasons for disciplinary action • Explain why action was lawful

19. The Position Statement (Cont’d) • Your Review • Review with decision-makers and key witnesses • Reminder — EEOC will likely share information with employee • Admissible evidence at trial • Changing positions later will hurt you at trial

20. EEOC — Request for Documents • EEOC’s subpoena power • Be familiar with all documents • Determine applicable documents to submit • Perhaps limit information to employees working for the same supervisor • Depends on scope of charge (individual vs. class) • Show and Explain Bad Documents

21. On-Site Investigations • EEOC needs permission or subpoena • Counsel should participate in all management interviews • Prepare witnesses as if for deposition • Conduct a pre-visit of your own (confirm posted notices, etc.) • Attend on-site investigation • Interact with the investigator

22. EEOC Determinations • No Reasonable Cause • Notice of Right to Sue • Reasonable Cause • EEOC May Bring Suit in its Name

23. Reasonable Cause • Challenge determination by requesting EEOC Reconsideration • Conciliation – agree or not agree to conciliate? • EEOC is usually looking for all available remedies

24. Oh No! … It’s an EEOC Charge! How to Respond Effectively. HR Women’s Breakfast Briefing June 11, 2008 Washington, DC Kara M. Maciel, Esq. kmaciel@ebglaw.com