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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
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
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

trend over last 10 years
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

hot issues for 2008
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
care giver responsibility
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
statistics and figures
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

slide7
EEOC

Handling EEOC Cases

eeoc federal laws covered
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
eeoc charge
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
statutes of limitations
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
eeoc responding to charge
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
general mediation program
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
employer internal investigation
Employer Internal Investigation
  • Immediately begin your internal investigation
    • Review Documents
    • Interview Witnesses
      • Ensure no retaliation
    • Draft Position Statement
review documents
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;
review documents cont d
Review Documents (Cont’d)
  • Supervisor’s Files;
  • Medical Files (if applicable);
  • Statistical Analyses; and
  • Other documentation relevant to the case.
interview witnesses
Interview Witnesses
  • Interview witnesses with relevant information: decision-makers, management, non-management, and HR personnel
  • Maintain confidentiality of investigation
position statement purpose
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**
the position statement statement of facts
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
the position statement cont d
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
eeoc request for documents
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
on site investigations
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
eeoc determinations
EEOC Determinations
  • No Reasonable Cause
    • Notice of Right to Sue
  • Reasonable Cause
    • EEOC May Bring Suit in its Name
reasonable cause
Reasonable Cause
  • Challenge determination by requesting EEOC Reconsideration
  • Conciliation – agree or not agree to conciliate?
    • EEOC is usually looking for all available remedies
oh no it s an eeoc charge how to respond effectively24
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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