It Will Happen

If you are a small employer (between 15 and 100 employees) at some point you will have an EEOC charge filed against you. When that happens, what should you do?

After catching your breath and letting the steam release from your ears, you should consult with an attorney who has handled many EEOC charges.   Based on the charge and situation, a simple consult outlining how you can respond may be all that is needed.  On the other hand, you may need to retain counsel to represent you and handle things with the EEOC if the matter is more involved.

The EEOC now has a mediation program which is designed to resolve charges without the need for an investigation and determination. If the employee still works for you, and this seems to be a simple misunderstanding, the mediation process may be the right course of action.

If mediation is not undertaken, or it fails, then the charge will be referred to the investigation unit. This unit will request a statement of your position, and may want to do interviews with folks at your company.  In some cases, they will actually do an onsite investigation.  If this is true, you will definitely want counsel. Ultimately they will either find a violation or they will not. If they don’t find a violation the charging party will be issued a right to sue letter but the chances of any further action are slim. If they do, they will work with you to remedy the situation and if that fails, the EEOC or another attorney may file a civil action. Hopefully the charge never gets that far.

If you have been in business for years and not yet seen a charge, knock on wood. But, if (and when) you do,  know that it is simply a part of being in business and can be handled.