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Employers: Here’s How to Gracefully Handle an EEOC Investigation
Employers: Here's How to Gracefully Handle an EEOC Investigation
An investigation can be costly for an employer, even one that is not guilty. The time, effort, stress and litigation costs can be crippling.
In spring 2022, fast food restaurant chain Long John Silver's agreed to pay $200,000 to settle a workplace sexual harassment and retaliation claim from a former employee.
A teenaged employee alleged that two adult male coworkers made lewd comments and sent her explicit text messages. When she complained about the behavior, her work hours were reduced and the company failed to investigate the allegations.
This was just one of the 61,331 formal charges from the 2021 fiscal year. In total, the EEOC secured more than $484 million for workplace discrimination victims.
The Equal Employment Opportunity Commission (EEOC) enforces compliance with federal workplace discrimination laws by receiving, investigating, and resolving incidents of workplace discrimination.
Investigation times vary depending on several factors, but the average time between charge filing and resolution is nearly one year. For employers accused of discrimination, an investigation can be long, complex, and expensive.
This article breaks down the stages of an EEOC investigation, from the initial complaint to the resolution options. At the end, we share tips for fast-tracking an EEOC investigation and the best strategies to avoid one altogether so you can protect your reputation and bottom line while providing a safe workplace for your employees.
Bias interrupters are designed to prevent discrimination.
What are they? How do you incorporate them into your organization? Learn more in our free cheat sheet.
According to their website, the EEOC "is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age (40 or older), disability or genetic information."
In general, employers, employment agencies, and unions with at least 15 employees must comply with EEOC laws.
The primary law enforced by the EEOC is Title VII of the Civil Rights Act of 1964. Title VII is the law prohibiting discrimination against protected groups such as religion, race, national origin, age, sex, and disability.
In addition to Title VII, the EEOC enforces compliance with these other discrimination-related federal laws:
- The Equal Pay Act of 1963
- The Pregnancy Discrimination Act
- Age Discrimination in Employment Act of 1967 (ADEA)
- Rehabilitation Act of 1973 S. 501 and 505
- Titles I and V of the Americans with Disabilities Act of 1990 (ADA)
- Civil Rights Act of 1991
- The Genetic Information Nondiscrimination Act of 2008
The Stages of an EEOC Investigation
If you're being investigated by the EEOC, it helps to know the details of each stage. You'll be able to gather all the documentation you need, plus help potential interviewees mentally prepare for what might be a stressful process.
1. Employee Files a Charge
The investigation process begins when a current, former, or potential employee files a charge with the EEOC via telephone, in person at an office, online, or by mail.
They might also file a dual claim with their state or local Fair Employment Practice Agency, such as the Department of Fair Housing and Employment in California, if they feel both state and federal laws have been violated.
Charges generally must be made within 180 days of the last discriminatory act and do not need to be filed by the direct victim. Charges require three pieces of information:
- A summary of the incident(s)
- Details about the employer
- The date of the last violation
A charge may be assigned priority if the preliminary facts indicate a violation occurred. On the contrary, a charge may be dismissed at any point in time if the EEOC concludes the incident did not violate any of the laws they enforce.
Investigate discrimination allegations right away so the issue doesn't escalate.
Not sure how to get started? Use our free EEO investigation checklist for guidance.
2. The EEOC Notifies the Employer
If the charge is not immediately dismissed, there is some basis for proceeding.
The EEOC has ten days to send a notice to the accused (your organization) explaining that a charge has been brought up against them and details of the allegations. This doesn't mean that you've broken the law, just that there's been a complaint of discrimination against your organization.
RELATED: Discrimination in the Workplace: What You Need to Know
When you receive the letter, consider who you need to share it with. This could include:
- Whoever is responsible for handling investigations within the company
- Internal legal department or an outside legal representative
- Compliance department
3. The Employer Acknowledges the Charge
As the employer, you must send a letter to the EEOC with the name of the legal representative who will handle the situation and respond to requests. Once this letter is received, the EEOC will launch a formal investigation.
By acknowledging the charge, you're not admitting guilt. The communication simply states that you are aware there is a charge against you and an investigation is about to begin.
In addition, the EEOC will inform you if the claim is eligible to be resolved via mediation, which can resolve the issue more quickly and cheaply, with a mutually beneficial outcome for your company and the complainant.
4. The EEOC Initiates the Investigation
To aid in the investigation, the employer may be expected to tell their side of the story in what’s formally called a position statement. The respondent typically has 30 days to submit their statement and relevant, supporting documents.
It is in the Respondent's interest to provide an effective position statement that focuses on the facts. An effective position statement is clear, concise, complete and responsive. It should clearly explain the Respondent's version of the facts and identify the specific documents and evidence supporting its position.
A position statement that addresses all the allegations in the charge and provides relevant evidence to support the Respondent's position can help EEOC accelerate the investigation and tailor its requests for additional information.
The employer will also receive a Request for Information (RFI) which requires them to answer questions, supply relevant documents (such as workplace policies and personnel files), participate in interviews, provide employee information and permit on-site visits.
If the investigation takes longer than 180 days, the accused may request the EEOC grant them the right to sue, regardless of an incomplete investigation.
5. The EEOC Makes a Determination
Based on the investigation, the EEOC will determine whether sufficient reasonable cause exists to believe a violation occurred.
If the investigation does not provide sufficient reasonable cause, the EEOC dismisses the charge and closes the case. The accuser has a right to file a lawsuit regardless of the findings within 90 days.
If there is sufficient reasonable cause, the EEOC will write a determination letter containing a brief summary of their decision and supporting reasons.
The EEOC is legally required to first attempt conciliation to remedy the incident. Conciliation is an opportunity to negotiate how your organization should change its procedures and decide on remedies for those affected.
Conciliation is the final chance at resolution before potential litigation and has many benefits. The process is cheaper and quicker than heading to court, it avoids the animosity of a lawsuit, and because it is a negotiation, it is often successful in meeting the needs of both parties.
If the conciliation is successful, there will be no lawsuit. If the process is unsuccessful, the victim may file a lawsuit or ask that the EEOC file one on their behalf.
A strong employee handbook and anti-discrimination policy are great defenses during an EEOC investigation.
Start writing or editing yours now with our free, downloadable employee handbook template.
At any point before or during the investigation process, the victim and employer can attempt mediation or a settlement as out-of-court resolutions.
Both are voluntary and effective resolution options. Compared to a lawsuit, these choices are less stressful and time-consuming and reduce the disruption this type of issue could cause. Mediation and settlements are also relatively inexpensive because they avoid litigation.
If you agree to mediation or a settlement, you're not admitting wrongdoing. Instead, you've simply decided to resolve the complaint informally.
RELATED: Disparate Impact & Treatment: The Definitive Guide
The EEOC provides mediation services to lead a discussion, during which both parties and the mediator negotiate a resolution. Mediation often leads to the employer changing their internal policies and/or procedures and providing a fair sum to the victim.
Settling is another voluntary resolution that can occur at any point in the investigation process. Similar to mediation, settling is informal, avoids lengthy legal battles, and does not require the accused to admit liability. The main difference between the two is the involvement of a third-party mediator.
Want to learn more about conflict resolution types?
Download our handy cheat sheet to learn ways to deal with conflict at every stage, from the first sign of an issue to the end of an investigation.
An investigation can be costly for an employer, even one that is not guilty. RFI’s are time-consuming and take valuable resources away from other projects.
Even if your company's innocence is proven in court, there will still be large legal bills and damaging publicity to deal with.
Employers found guilty might be expected to pay expensive damages in the form of back pay, hiring, promotion, reinstatement, front pay, reasonable accommodation, or other actions that will make the victim “whole,” in addition to the attorney fees and court costs.
Because the costs are so great, it’s best to avoid an EEOC investigation entirely. Prevention is easier, cheaper, less stressful, and less disruptive than dealing with a discrimination claim.
However, if you find yourself being investigated by the EEOC, there are many ways to simplify and fast-track the process.
- The investigation process is much quicker when both parties cooperate and participate. Don't refuse to attend interviews or provide documentation. The complaint is less likely to go to court, saving the employer time, money, and negative publicity when everyone takes the process seriously.
- Be timely. Providing files in a timely manner fast-tracks the investigation and keeps the agency happy. It also demonstrates openness and transparency, showing that your organization has nothing to hide.
- Keep accurate, up-to-date information. An employer without up-to-date, organized files directly slows the investigation process. The longer you spend tracking down documents, the more likely you are to miss a deadline. Using case management software can help to ensure organized, accurate, up-to-date information is available any time you need it.
Education and training can help to prevent discrimination and discriminatory harassment in your organization, but it may still occur.
If and when it does, there are a number of steps you can take to ensure that incidents are resolved internally and never escalate to the point of getting the EEOC involved.
- Victims may feel uncomfortable speaking with HR or their manager at their work one-on-one, which is why they turn to the EEOC. So, offer a hotline or online form to receive tips and complaints. Make sure to remind employees where to find it and how to use it often!
- Under federal law, employers must visibly display an Equal Employment Opportunity is the Law poster. The poster demonstrates to employees that your organization is aware of and committed to its obligations as a discrimination-free employer.
- Make sure that employees and managers know the company's anti-discrimination policy and procedures. Define acceptable and unacceptable conduct, then spread the message (training is a great place to start).
- Train managers on signs of discrimination. If managers can intervene quickly before the issue progresses, they will save the company from an expensive lawsuit. This also helps managers build trust and mutual respect with their employees.
- To avoid escalation, handle complaints seriously, promptly, and decisively. If an employee comes forward with a complaint, follow up and investigate ASAP instead of brushing it under the rug.
Nipping discrimination in the bud (or avoiding it altogether) protects your organization both financially and reputationally, plus makes employees feel safe and welcome in the workplace.