The Columbus, Ohio employment attorneys at Nardone Limited regularly assist our clients with labor and employment issues, such as Department of Labor compliance, as well as advice on preventing and responding to discrimination charging affidavits filed with the Equal Employment Opportunity Commission (“EEOC”) and the Ohio Civil Rights Commission (“OCRC”). As a part of defending clients against discrimination and harassment charges filed with the EEOC or the OCRC, Nardone Limited is very familiar with the necessary steps to respond. Thus, this blog serves to provide an overview of discrimination charges and the steps to respond.

Step-by-Step Recommendations

If your business receives a discrimination charge filed by a current or former employee, one of the first decisions you will need to make upon receiving a charge is whether you want to proceed with mediation or a probable cause investigation. In the official notification of the discrimination charge from the OCRC or EEOC, an employer is permitted to choose whether to proceed with mediation of the charge or to proceed with an investigation and actively contest the charge. Each option is detailed in the charging document a company would receive from the state or federal government.

Whether the employer decides to proceed with the mediation or the investigation will somewhat alter the process. Thus, if an employer chooses mediation, it may somewhat affect the step-by-step analysis detailed in this blog. That said, we generally recommend choosing the investigation path, particularly since many filed claims are outright frivolous and improper. But, many of the steps below would also apply to the mediation approach. We recommend the following general steps to employers in responding to EEOC or OCRC discrimination charges.

• Involve an Attorney at the Outset. There are no re-dos or take-backs in the real world. Involving an attorney at the outset is vitally important to ensure that the company does not make a significant error by beginning the process on its own. As the second step, you will need to conduct an adequate investigation of the charge, and you will need counsel to ensure that the investigation is contained, kept confidential, and protected under attorney-client privilege.

• Conduct an Internal Investigation. Individuals with knowledge of the background should be interviewed by the employer’s counsel as soon as possible after the charge is received. The employer’s counsel should conduct the interviews and investigation to provide for greater confidentiality and ensure that the interview findings are properly documented. Further, we would emphasize that for optimal credibility over the investigation and its findings, the interviews really should be conducted by a third-party. If the interviews must be conducted internally, however, the interviews should not be conducted by a direct supervisor of those being interviewed.

Nardone Limited Comment: a full detailed explanation of guidelines on conducting internal investigations is outside the scope of this blog. Rather, this blog is intended to provide a broad overview of employer steps to respond to a charge.

• Documentation of Interviews. Following witness interviews, you should work with counsel to prepare affidavits for the witnesses to memorialize their testimony regarding the matter.

• Preparation of Employer’s Statement in Response. Work with counsel to prepare a detailed Employer Position Statement to respond to the employee’s discrimination claim. The detailed position statement should incorporate and reference affidavits from the employer’s investigation, and address each allegation from the charging document, one-by-one.

Following the investigation, the OCRC or the EEOC will issue a decision of either: (a) “no probable cause” or (b) of “a right to sue.”  Generally, if the employer properly investigates and provides a detailed position statement, the employer’s response will have much more credibility than the claimants, which generally include statements that are plainly exaggerated. Thus, we have observed that employers tend to experience a higher rate of success when they properly investigate and prepare a detailed response to discrimination charges.   

Finally, in addition to the above steps for responding to discrimination and harassment charges, employers should remain proactive to avoid workplace issues before they occur. Thus, we would encourage employers to speak with counsel and take active measures to ensure that their business is complying with federal and state anti-discrimination laws, including: (i) establishing and enforcing anti-harassment and anti-discrimination policies and procedures; (ii) providing the necessary training on such policies; and (iii) addressing related complaints promptly, thoroughly, and sufficiently to defend against potential discrimination charges or litigation and related liability.

Contact Nardone Limited

The Nardone Limited employment attorneys handle a full spectrum of employment law issues, including business disputes and litigation, drafting of employment and restrictive covenants, and consultation on all types of employment law issues. If your business needs advice or representation on an employment dispute before the EEOC, the OCRC, or regarding potential employment litigation, contact one of our employment attorneys. Further, feel free to contact Nardone Limited if you would like more information or consultation regarding any employment law issue.