My Company Received an EEOC Charge. What Should We Do?

What a charge is, and what it is not

A charge of discrimination is a sworn statement by a current or former employee, or an applicant, that the company violated one of the laws the Equal Employment Opportunity Commission enforces: Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Equal Pay Act and others. In Texas the same conduct is covered by Labor Code chapter 21, enforced by the Texas Workforce Commission Civil Rights Division, and the two agencies share work: a charge filed with one is treated as filed with both.

The charge is not a finding and not a lawsuit. It is the required first step before the employee can sue, because neither Title VII nor chapter 21 allows a discrimination or retaliation suit to be filed in court without exhausting the agency process first. The employee had to file within 300 days of the alleged act for the EEOC, or 180 days for the Texas agency, which means a charge that arrives is usually timely on the federal side and may or may not be timely on the Texas side. Checking the dates is the first thing a litigator does.

The process, step by step

1. Notice. The EEOC sends the employer a notice of the charge, generally within ten days of filing, with a link to its online Respondent Portal where the company can read the charge, submit documents and communicate with the investigator. The notice sets a deadline for the position statement.
2. Mediation. The EEOC offers mediation at the outset in many cases. It is voluntary for both sides and confidential, and it suspends the investigation while it is pending. If both sides agree and mediation succeeds, the charge is closed with a settlement.
3. Position statement. If mediation is declined or fails, the EEOC asks the company for a written response to the allegations, the respondent's position statement, with supporting documents. The charging party is given access to the statement and may reply.
4. Investigation. The investigator may send a request for information, ask to interview managers and witnesses, or visit the workplace. The investigator may also propose settlement at any point.
5. Determination. The EEOC either dismisses the charge, issuing a dismissal and notice of rights that tells the employee they have 90 days to sue, or finds reasonable cause, in which case it attempts conciliation with the employer. If conciliation fails, the EEOC may sue itself or issue the employee a notice of right to sue.

The charging party may also request a notice of right to sue after 180 days have passed from filing, whether or not the investigation is finished, and some do so early to move the case into court. The EEOC's own description of the process is on its page What You Can Expect After a Charge is Filed.

The Texas side of a dual-filed charge

Because of work-sharing between the agencies, one of them investigates and the other adopts the result. The Texas rules still matter for timing. Under chapter 21 the complaint must have been filed within 180 days of the alleged act, the employee may request a Texas right-to-sue notice after 180 days, and a Texas lawsuit must be filed within 60 days of receiving that notice and no later than two years after the complaint. The federal periods are 300 days to file and 90 days to sue. A charging party who waits for the EEOC's notice may find the Texas window closed, which limits the claims and the forum available. The company's litigator will track both calendars.

Writing the position statement

The position statement is the company's first and often most consequential submission. The charging party will read it, the investigator will test it, and the employee's lawyer will compare every later statement against it. Treat it as a brief.

What it should do:

• State the legitimate, non-discriminatory reason for the decision clearly, with the documents that show it: the policy, the warnings, the metrics, the decision-maker's contemporaneous notes.
• Identify who made the decision and when, especially where the charge alleges retaliation and the decision predates the protected activity.
• Provide comparator information: how employees outside the protected class who did the same thing were treated.
• Answer the allegations the charge actually makes, including the procedural ones, such as whether the company has 15 or more employees and is covered at all.
• Raise timeliness: any act outside the 300-day or 180-day window should be identified as such.

What it should not do: argue every point at length, attack the charging party personally, disclose unrelated confidential information about other employees without marking it, or offer a reason for the decision that differs in any way from what the employee was told at the time. A shifting explanation is the single most damaging thing a position statement can contain, because it is the classic evidence of pretext in the lawsuit that may follow.

Example

Suppose a Dallas-area medical billing company with sixty employees receives an EEOC charge from a former coder who was terminated three months earlier. The charge alleges disability discrimination: she says she was fired two weeks after requesting a modified schedule for a medical condition. The company's records show the termination followed an audit that found a 14 percent error rate in her coding over two quarters, against a department average under 3 percent, and that the audit began before her schedule request.

The company notifies its employment practices insurer, preserves the audit files and the manager's emails, and declines mediation for now because the record is strong. Its position statement sets out the audit timeline, attaches the audit reports and the written warning issued before the schedule request, identifies two other coders without any disability who were terminated after similar audits, and notes that the modified schedule was in fact granted for the remaining two weeks. The investigator requests the audit methodology, receives it, and issues a dismissal and notice of rights. The former employee has 90 days to sue in federal court; her Texas deadline has already lapsed. No suit is filed.

Should the company mediate?

Mediation through the EEOC is free, confidential and non-binding, and declining it carries no penalty. The decision turns on the record. When the company's documentation is strong, many employers decline at the outset, submit the position statement and let the record do its work, keeping settlement open later. When the record has a problem, such as a decision-maker who put an unfortunate comment in writing, or a termination that followed protected activity by days, early mediation can resolve the matter for less than the position statement, investigation and lawsuit would cost, and with a release. How mediation works in general is covered in what business mediation is and how it works.

Common employer mistakes at the charge stage

• Ignoring the notice or missing the position statement deadline, which forfeits the chance to shape the investigation.
• Letting a manager or HR generalist write the position statement without legal review, producing a document the company later has to live with.
• Giving a new or expanded reason for the decision.
• Destroying or failing to preserve records, including text messages and the files of comparator employees.
• Contacting the charging party directly or discussing the charge with staff who may be witnesses.
• Changing the terms of employment for a charging party who still works at the company, or for co-workers who gave statements.
• Failing to notify the insurer, and so losing coverage for the defense.

What it costs the business

A charge that is dismissed after a position statement costs management time to assemble the record and legal time to write it. A charge that goes to a full investigation adds interviews, document requests and months of uncertainty. A cause finding adds conciliation and the possibility of EEOC litigation. The variables that drive the cost are the strength of the documentation, the number of allegations, whether the charging party is still employed, and whether the company's explanation has stayed consistent from the day of the decision. Insurance, where it exists, usually covers defense costs after a retention.

If the charge becomes a lawsuit, the defense built at the charge stage carries over; the position statement, the comparator data and the decision timeline become the summary judgment record. The theories and defenses in that lawsuit are covered in defending a wrongful termination claim in Texas. Tina Wysk represents Dallas-area employers before the EEOC and the Texas Workforce Commission and in the state and federal lawsuits that follow; see employment-related business disputes.