2015 HBA Continuing Legal Education:
Navigating the EEOC’s
Practice & Procedures
January 30, 2015
IAN SCHARFMAN
The Scharfman Law Firm, PLLC
Special Thanks to Martha Chace for her assistance and preparation of this
presentation.
PRE-FILING CONSIDERATIONS
Pre-filing Considerations:
Plaintiff
• Laws that apply
• Federal:
• Title VII, 42 U.S.C. §2000e
• ADA, 42 U.S.C. §12101
• ADEA, 29 U.S.C., §621
• State Law:
• TCHRA
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Purpose is to be correlated with state law (except for some disparate pay claims now)
• Administrative Venue: TWC-CRD or EEOC
• *race, color, & nat’l origin discrimination claims may be pursued directly in a lawsuit in a
competent jurisdiction under the Civil Rights Act of 1866
• Number of Employees: (based on year of discrimination and time period)
• Title VII, ADA, TCHRA: at least fifteen (15); ADEA: at least twenty (20)
• *In Title VII, # is a substantive element (Arbaugh), but is jurisdictional under TCHRA.
• Amount is typically determined by # on pa roll (Metropolitan)
• Filing with federal or state commission
• Filing with the EEOC counts as filing under state AND federal law (our focus today)
• Filing with TWC-CRD is only a filing with state law
Pre-filing Considerations:
Defendant- Two Main Issues
• Handle Unemployment Claims with Care
• Unemployment is typically filed before the EEOC charge
• This is usually okay because TWC’s (the state) findings don’t have an
estoppel effect and not admissible as evidence in trial
• What not do:
• Fail to contest an unemployment claim when the issue is whether or not
the employee quit or fired. See Hansard v. Pepsi, 865 F.2d 1461 (5th Cir.
1989).
• Create issues of pretext—provide all the reasons for termination at the
time of termination; don’t wait until trial. See Bowen v. El Paso Elec. Co.,
49 S.W.3d 902 (Tex. App.—El Paso 2001, pet. denied).
• Do not Unnecessarily Publicize the Facts Regarding an Employee’s
Termination
• Loose lips can still sink ships: employers need to limit the extent of
their communications regarding reasons for terminating
• If there is communication, keep it accurate and truthful
FILING THE CHARGE
Filing the charge: Exhaustion
• What is a “charge”?
• Employment discrimination plaintiff’s MUST exhaust administrative remedies
before pursuing claims in federal court.
• Occurs when CP files Charge with EEOC (300 days) & receives a right to sue
• Also required to bring claim under TCHRA - Jurisdictional--notarized and within
180 days
• Form 5 or Administrative Charges (under CFR)within 300 days must include:
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Name, address, phone number of person making charge
Same as above of person whom charge is against
Clear & concise statement of facts
Appx. number of employees of respondent employee
Statement of any charges that may have been commenced with a State or local
agency
• Written statement identifying the parties
• Employee becomes “charging party” and employer becomes “respondent”
• To count as a charge under the ADEA and Title VII, the charge must be viewed
as a request for the agency to take remedial action to protect the employee
or settle a dispute. Fed. Express Corp. v. Holowecki, 128 S. Ct. 1147 (2008)
Filing the charge: Exhaustion
• Defining the Scope of the Charge in Subsequent Litigation
• Sometimes a charge does not encompass all the claims contained in
the lawsuit
• When this happens, the Fifth Circuit says exhaustion will still occur if
the latter claims could reasonably grow from the charge. Sanchez,
431 F.2d 455, 466 (5th 1970).
• Exceptions to the Charge Filing Requirement
• Post-Charge Retaliation: this is when the Charging party is
terminated while the charge is investigated or after the lawsuit is
filed, the charging party does not haeve to amend or file another
charge
• The Single Filing Rule: enables plaintiffs who have not filed EEOC
charges to “join or intervene in a lawsuit when the original, similarly
situated plaintiff has exhausted the administrative requirements.”
Price v. Choctaw Glove & Safety, Co., 459 F.3d 595, 598 (5th Cir.
2006). The Charge must have provided notice of the class or
collective action nature of the Charge.
Filing the charge: Mediation
• EEOC offers this to most parties and a mediation election form
is provided to the Respondent after filing
• Both parties must agree to mediate
• If no mediation, charge is transferred to investigation
• EEOC mediation is voluntary and confidential
• If successful, no investigation; if unsuccessful, investigation
Filing the Charge: Mediation
• Advantages of mediation (according to the EEOC)
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Free
Efficient (lasts 1-5 hours)
Quick processing time of 84 days
Completely voluntary
Mediators are neutral third parties
Confidential
Informal process
Settlement agreements are not admissions of any violations of
the law and are enforceable
• Helps parties understand why employment broke down
• Help repair the relationship
Filing the charge: Timeliness
• General Rule
• Claim for Title VII discrimination must be filed
with EEOC within 180 days of alleged unlawful
act or within 300 days of the plaintiff’s first
complaint with a state or local agency (42
U.S.C. § 2000e-5(3)(1)).
• Runs from date of unequivocal notice
• Benefits of 300 days is only if there is a state
Fair Employment Practices Agency; such as the
Texas Workforce Commission-Civil Rights
Division.
Filing the charge: Timeliness
• Exceptions to the General Rule
• Continuing Violation Theory:
• in federal law, the filing period is subject to tolling or estoppel, but
should be applied sparingly
• Allows courts to extend the time period of hostile work environment
claims that involve incidents over time rather than discrete acts
• At least one of the acts must be within the 180 or 300 day period
• Equitable Tolling or Equitable Estoppel
• Used sparingly by Fifth circuit
• Is used when the plaintiff is actively misled by the defendant about
the cause of action or is prevented from asserting rights
• Three times this can be used:
• Pendency of suit between same parties in the wrong forum; CP is unaware
of facts giving rise to the claim because of R’s concealment; EEOC misleads
CP of the nature of their rights
• Party who invokes bears the burden of demonstrating it applies
Filing the charge: Timeliness
• Exceptions to the General Rule
• Relation Back Theory:
• Applies when the Form 5 is filed by the Charging Party in an untimely
manner
• Ex., if charging party filed an Intake Questionnaire Form, it is sufficient to
constitute an “Administrative Charge,” and the Form 5 can be amended
to use the intake form date instead
• Amendments that raise a new legal theory don’t usually relate back to
the time of filing
• Exception: can relate back if the new theory of recovery has essentially the
same facts as the original charge
• Lily Ledbetter Fair Pay Act:
• Rule: If the discriminatory pay decision occurred outside of the 180 or
300 day limitations, a charge is timely so long as it is made within 180 or
300 days of when the Charging Party was affected by it
• Created by the FPA, congress’s response to the Ledbetter case
• Is not applied under the TCHRA
DEFENDANT’S NOTICE OF CHARGE &
RESPONSE
Defendant’s Notice of Charge &
Response: Document Hold
• After charge is filed with EEOC, employer has a duty to
preserve documents relating to employee’s claims
• “litigation hold”—employers should advise key employees of
the types of documents that need to be preserved
• Inadvertent disclosure can severely harm employer’s defense
• Failure to comply with duty to preserve relevant information
can have serious consequences once litigation begins
• Ex. sanctions, spoliation instruction, etc…
Defendant’s Notice of Charge &
Response: Investigation
• Privilege Issues in the Investigation Itself
• Employers should have in house or outside counsel work on
response to the EEOC charge to keep it privileged
• Privileges are subject to waiver
• Can be asserted by affirmative defense—protects employers from
liability for otherwise unlawful harassment when no tangible
employment action is taken against employee
• Faragher v. City of Boca Raton, 524 US 775 (1998); Burlington Indus. V.
Ellerth, 524 U.S 742 (1998)
• Some courts see this assertion as a waiver of the work product doctrine and
attorney-client privilege
• Want to avoid the lawyer becoming an operative fact witness
• Use a “proxy” investigator, perhaps someone in HR of the company
Defendant’s Notice of Charge &
Response: Investigation
• Conducting a Robust Investigation
• Investigator should gather copies of all relevant documents and
conduct interviews (under privilege)
• Have key witnesses review the draft position statement to check for
100% accuracy
• Tell employees who are interviewed that the communication is
privileged and advise them of company’s anti-retaliation policies
• Employees who are merely interviewed can sue for retaliation (Crawford,
129 S.Ct. 846 (2009)).
• If dealing with a current employee—
• If a manager with knowledge of charge, inform of company’s antiretaliation policies in writing
• Reach out to the employee and interview them (not privileged)
Defendant’s Notice of Charge & Response:
Investigation—When Termination Decision is
at Issue: Questions to Ask
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Was the rule or standard which was violated
published?
Did the employee ever receive a personal, written
copy of the rule violated?
If other employees violated the same rule, did
they receive the same disciplinary action as the
employee? This is especially critical if the
employees worked for the same supervisors, and
violated the work rule in the same fashion
Is the employer consistent and unbiased I applying
rules and standards?
Does the employer have factual records on all his
employees covering all violations of this rule or
order?
Has this employee been warned previously for
violation of this rule or order?
Has the employee ever received a previous
written warning of the violation of this rule or
order
Has the employee ever received a final earning of
the violation?
What is the employee’s warning record during the
last twelve months?
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Would a failure to terminate have raised questions
of consistency of application of the employer’s
policies?
How long has the employee been employed;
positions held?
If performance is an issue, has there been any
counseling? If not, why?
What do prior written performance reviews look
like?
Was the incident which triggered the final warning
or discharge carefully investigated prior to taking
serious or final disciplinary action?
Does your evidence include names of witnesses
dates, time, places, and other pertinent factors on
all past violations, including the last one?
Did the employer seek out and hear the
employee’s version of events before terminating
their employment
Was the degree of discipline imposed on this
employee related to: the seriousness of the
proven offense; the employee’s past record; the
employee's length of service?
Defendant’s Notice of Charge &
Response: Privilege Issues & the EEOC
• Avoid giving responses that contain otherwise confidential
information
• EEOC will disclose nearly all information in a charging party’s file
Therefore, in response to RFI, employers must give due
consideration to producing information
• Employers should seek agreement with EEOC investigator that
disclosure of trade secrets and confidential information will not be
made; if no agreement, employee might have to refuse to cooperate
• Selective Waiver: allows parties to produce privileged documents
without waiving the privilege
• Many courts reject this doctrine with attorney-client privilege and
attorney work product
• Whether & when disclosure to EEOC is a waiver of privilege depends
on the jurisdiction, types of documents produced, and specific facts
under production
Defendant’s Notice of Charge &
Response: Response
• EEOC asks employer to prepare written response to the
allegations in the charge
• May be in the form of a position statement
• Employers are given 14-30 days to respond, but can request more
time
• Position Statement:
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Should respond fully to each major allegation
It must be accurate
Can be used against employer in trial
Should be the type of image the employer wants to present—
kind, compassionate, concerned about having the best for all the
workers
• Shouldn’t express anger toward the EEOC
• Should emphasize the good things done for charging party
Defendant’s Notice of Charge &
Response: Mediation
• When you go to an EEOC mediation, bring your own
settlement agreement
• EEOC agreement only covers claims brought in the EEOC
charge
• If any other claims need to be brought up, employer must
bring a supplemental settlement
PLAINTIFF’S REBUTTAL
Plaintiff’s Rebuttal: Obtaining the
Employer’s Position Statement
• At this stage, the EEOC reviews received documents to make
decision about continuing investigation or not
• EEOC investigator follows up with Charging Party to discuss
the position statement and requests a response if they
continue the investigation
• If counsel for charging party, should obtain a copy of the
position statement and prepare a rebuttal to submit to EEOC
• Need to know policies of the EEOC District office
• Houston—allows CP or attorney to obtain the position statement
and sign a non-disclosure agreement or agree to same
• Dallas—doesn’t send the statement, only provided upon request, but
request discussion of points raised by Respondent
Plaintiff’s Rebuttal: Preparing
a Rebuttal
• Need to persuade the EEOC that the Charge deserves a Cause
Finding
• Should present an overview of the facts and describe the CP’s
positive role in the company
• Facts should describe the scenario within which the CP found
themselves in that gave rise to the claim
• Should be clear as to specific factual allegations—the more
information, the better
• Identify individuals to support the claims
• Discuss legal authority and interpretation of the law as
necessary
HANDLING THE EEOC’S FOLLOW-UP
INVESTIGATION EFFORTS
Handling the EEOC’s Follow-up
Investigation Efforts: RFI/RFP
• There are few limits to the EEOC’s investigatory powers
• Are not limited to claims in the charge, can consider other
locations in systemic claims, and look into other violations of
other employment laws
• EEOC process:
• New charges are given a recommendation as to scope of the
investigation
• Then, EEOC prepares a written investigative plain to guide the
commission
• Includes a Request for Information (RFI), employer position
statement, witness interviews, on-site investigations, or other tools
• Will issue an RFI to employer as the first step and follows the
Compliance Manual
• Employers can object to the RFI on grounds of undue burden,
but should provide alternative forms of information
Handling the EEOC’s Follow-up
Investigation Efforts: Interviews & Onsite Investigations
• EEOC schedules these in advance, but no notice to employer is
necessary
• Interviews can be connected at worksite unless witness wants
anonymity
• Onsite interviews require employers consent
• Interviews can happen before a position statement is filed
• Employer or attorney cannot be present, unless management
personnel
Handling the EEOC’s Follow-up
Investigation Efforts: Subpoenas
• EEOC’s subpoena power is broad and can likely gain access to
all non-privileged materials within its investigative plan
• Though broad, should only be used after other methods are
attempted
• EEOC can subpoena any person who has custody or control of
relevant evidence
• Limits to subpoena power—nationwide searches for
information (EEOC v. United Parcel Service, Inc., 2008 U.S. Dist.
LEXIS 67601)
• Additional briefing:
• If EEOC is leaning toward probable cause, employer should
provide EEOC with additional briefing
DISMISSAL
Dismissal: Initiated by the
EEOC
• After investigation, the investigator will make a decision to
recommend dismissal or finding cause
• Right to Sue letter: issue when there is a recommendation for
dismissal without a finding of cause
• This states that the commission is unable to conclude that a
violation of law has occurred
• Charge is on file for 180 days before right to sue letter is given
• unless EEOC district office has been granted a waiver by
commission by backlog of cases
• Receipt of right to sue letter triggers a filing deadline of 90
days that must be observed
Dismissal: Initiated by the
Charging Party
• Charging party can request the right to sue letter to proceed
to litigation without waiting for the EEOC investigation
• Consider 180 day abatement issues with courts or seek it under
district office waiver
• Procedures for requesting a right to sue letter vary between
district offices
Dismissal: Employer’s
Considerations
• After right to sue, employer could still be liable for retaliation
• Employers should not assume that just because there is no
suit based on the right to sue letter that there will not be a
suit
• Could later get a notice of right to file civil action letter from
TWC-CRD
• Some anti-discrimination laws don’t require an employee to
exhaust administrative requirements
• An example is intentional race discrimination and retaliation
under Section 1981
CAUSE FINDINGS
Cause Findings: Preliminary
Determination Letters
• EEOC will often issue a preliminary determination letter
• Ex: could advise Charging Party that they intend to find no
probable cause for certain reasons, and will dismiss the charge on
that basis, unless charging party provides additional evidence
• CP should consider whether additional evidence would suffice or
request right to sue letter
• EEOC can also conduct a pre-determination interview with
respondent if it is leaning toward finding a violation of the law
Cause Findings: Letters of
Determination
• This is sent when the EEOC concludes that evidence
establishes discrimination occurred
• Will provide a factual basis for the finding that a violation has
occurred
• Sets forth the violations
• Will say why certain claims weren’t reached if applicable
• Once it is sent, EEOC will attempt conciliation with the
employer to develop a remedy for the alleged discrimination
Cause Findings: Conciliation
• Legal Pointers
• EEOC has a statutory obligation to attempt conciliation with
employers
• Good faith attempt of conciliation requires:
• Outline to the employer the reasonable cause for its belief that Title
VII or some other law in its jurisdiction has been violated
• Offer an opportunity for voluntary compliance
• Respond in a reasonable and flexible manner to the reasonable
attitudes of the employer
• Practice Pointers
• Often, the investigator handles conciliation when they entertain a
settlement demand from the Charging Party.
• Usually the demand is monetary relief, but might also include
non-monetary requests—expunge of files or letter of
recommendation, etc.
LITIGATION
Litigation: By EEOC
• When Title VII was enacted in 1964, it authorized private actions by
individual employees and public action by the AG
• Then, EEOC only had the authority to investigate and conciliate
charges of discrimination
• In 1972, Congress amended Title VII, and the EEOC can now bring it’s
own enforcement actions
• EEOC can bring suit on a charging party’s behalf
• EEOC actions are not subject to state statute of limitations, but are
in the federal enforcement structure
• Is in a unique position to litigate systemic cases
• Limits to EEOC’s litigation powers:
• If the investigation focuses on a local or regional area of the
employer’s workforce, it cannot file against the employer nationally
later
• No direct decision on whether Title VII limitations binds the EEOC
Litigation: By Private Party
• When the charging party receives her right to sue, the CP
must file suit within 90 days of receipt
• At this stage, the party needs to assess
• which claims are ripe or viable for litigation within the scope of
the charge,
• which venue or forum is appropriate, and
• whether the option exists for state law claims to be brought as
well, and the deadlines for such state law
Litigation: Intervention Issues
• If the EEOC issues a letter of determination and conciliation
fails…
• The Commission determines whether it will press forward in
litigation against the employer, the EEOC will be doing so on
behalf of the public interest and the commission is the party
plaintiff
• Should the party choose to be an individual party in the
action, his attorney must decide if that action is ripe for
intervention based on the claims pled
• A charging party may intervene in a Title VII action brought by
the EEOC, but not an ADEA action