Your company just received a Notice of Charge of Discrimination from the Equal Employment Opportunity Commission (“EEOC”) or Texas Workforce Commission Civil Rights Division (“TWC”). The agency will ask for a statement of the company’s position regarding the issues covered by the charge, which it will consider during its investigation. The next round of communications will be very important, especially if the employee decides to file suit after the investigation.
The EEOC and TWC dismiss most charges, after which the employee has 90 days to file suit in state or federal court. In order to prevail, the employee will usually need to show the company’s stated reasons for dismissal were a “pretext” for discrimination or retaliation. This is where a poorly-worded or incomplete response can be particularly dangerous.
For example, in Ameristar Airways, Inc. v. Administrative Review Bd., U.S. Dept. of Labor, the employer (Ameristar Airways) terminated its director of operations for a variety of work-related offenses. In its original communications with the Texas Workforce Commission, Ameristar cited only two reasons for its termination decision. Once the employee filed suit, however, Ameristar came up with four new reasons for the decision. According to the Fifth Circuit, the shifting justifications for the decision tended to suggest the reasons were “a mere litigation figment” and, therefore, a pretext for discrimination. Those of you who are interested may read the full opinion here.
The Ameristar case demonstrates the importance of conducting a complete internal investigation that includes a review of pertinent documentation and interviews with relevant employees under attorney-client and work product privileges. Once counsel has completed necessary interviews and conducted a thorough document review, appropriate defenses can be developed for the formal response. The employer should maintain its position on a consistent basis throughout the response and in any subsequent litigation to avoid the appearance of pretext.
Additional information about the charge handling process can be found on the websites of the EEOC and TWC Civil Rights Division.