Five Things An Employer Should Do After Receiving a Charge of Discrimination

So, you’ve just received a charge of discrimination from the Equal Employment Opportunity Commission or a state agency, like the Minnesota Department of Human Rights? Now what?

Here are five steps an employer should take after receiving a charge of discrimination:

  1. Gather Relevant Documents: One of the primary sources of evidence to defend against employment claims is documentary evidence, including electronically stored information. Accordingly, employers should identify and gather relevant documents relating to the challenged decision (such as the employee’s personnel file or any relevant emails) and preserve those documents.
  2. Identify Witnesses: Apart from documentary evidence, the other primary source of evidence in an employment dispute is witness testimony. As a result, employers should identify potential witnesses who were involved in the challenged decision. These individuals will be helpful in investigating and defending against the charge of discrimination.
  3. Determine Whether to Retain Legal Counsel: After receiving a charge of discrimination, an employer should consider whether to retain legal counsel to defend against the charge.  Legal counsel can provide guidance, help develop a strategy, and either help to mediate the dispute or prepare the employer’s position statement.  Whether legal representation will be necessary will depend on a variety of factors, including the nature of the allegations, the nature of the evidence available to defend against the claim, the employer’s budget, and whether in-house staff have the availability and experience to investigate and respond to the charge.
  4. Decide Whether to Mediate or Oppose the Charge.  The agency investigating the charge will generally offer a choice to the employer of either engaging in early mediation or providing a written response disputing the allegations.  Which choice is best depends significantly on the facts of each case and what the employer wants to accomplish.
  5. Prepare a Position Statement.  If the employer decides not to mediate, it will need to provide a written position statement to the investigating agency.  In general, a good position statement affirmatively tells the employer’s side of the story and responds to the allegations made by the opposing party.  Although it’s not always necessary, there may also be a need to address legal issues or arguments raised by the charging party.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on September 2, 2015, in Discrimination and Harassment, Litigation and tagged . Bookmark the permalink. Comments Off on Five Things An Employer Should Do After Receiving a Charge of Discrimination.

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