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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. [email protected] Trend In Rise of EEOC Claims. In 2007 – 82,792 EEO Charges filed (almost 10% increase from 2006) 37% Race 30.1% Gender

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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.

[email protected]

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Trend In Rise of EEOC Claims Effectively.

  • 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

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Trend Over Last 10 Years Effectively.

  • 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

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Hot Issues for 2008 Effectively.


  • New Guidelines issued by EEOC on Care Giver Responsibility Discrimination in 2007

  • Increased rise in pregnancy / maternity leave discrimination

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Care Giver Responsibility Effectively.

  • 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

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Statistics and Figures Effectively.

  • 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.



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EEOC Effectively.

Handling EEOC Cases

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EEOC — Federal Laws Covered Effectively.

  • 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

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EEOC — Charge Effectively.

  • 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

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Statutes of Limitations Effectively.

  • 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

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EEOC — Responding to Charge Effectively.

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

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General Mediation Program Effectively.

  • 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

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Employer Internal Investigation Effectively.

  • Immediately begin your internal investigation

    • Review Documents

    • Interview Witnesses

      • Ensure no retaliation

    • Draft Position Statement

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Review Documents Effectively.

  • 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;

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Review Documents (Cont’d) Effectively.

  • Supervisor’s Files;

  • Medical Files (if applicable);

  • Statistical Analyses; and

  • Other documentation relevant to the case.

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Interview Witnesses Effectively.

  • Interview witnesses with relevant information: decision-makers, management, non-management, and HR personnel

  • Maintain confidentiality of investigation

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Position Statement (Purpose) Effectively.

  • 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**

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The Position Statement Effectively.(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

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The Position Statement (Cont’d) Effectively.

  • 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

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EEOC — Request for Documents Effectively.

  • 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

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On-Site Investigations Effectively.

  • 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

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EEOC Determinations Effectively.

  • No Reasonable Cause

    • Notice of Right to Sue

  • Reasonable Cause

    • EEOC May Bring Suit in its Name

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Reasonable Cause Effectively.

  • Challenge determination by requesting EEOC Reconsideration

  • Conciliation – agree or not agree to conciliate?

    • EEOC is usually looking for all available remedies

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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.

[email protected]