Question:

I just received a charge of discrimination. It was forwarded to me by a government agency. I have been told by my office manager that most likely this will just go away. Others have told me that this is a process I must take very seriously, and that I may want to consult with an attorney. What do you think?

Answer:

Properly responding to a charge of discrimination is crucial to the defense of a discrimination or harassment claim and for that reason we recommend that you consult with your attorney with respect to how to best prepare the response. A response to a discrimination claim involves communicating with governmental agencies, conducting an investigation, gathering facts, interviewing witnesses, reviewing and compiling documentary evidence, and researching the numerous laws enforced by the Equal Employment and Opportunity Commission (EEOC) and Department of Fair Employment Housing (DFEH). Relevant information must then be formulated into a response that establishes a reasonable, legitimate and non-discriminatory explanation for the employment action. This procedure is time consuming and costly, but will frame the case for dismissal, settlement, or the strongest possible defense.

Upon receipt of an EEOC or DFEH charge, a thorough investigation should be conducted. After investigating the facts relating to a charge, the employer and/or its legal counsel may respond in one of three ways:

  • Agree to mediate the charge;
  • Make a settlement offer to the charging party through the EEOC or DFEH without participating in formal mediation;
  • Prepare a response to the charge, which sets forth the employer’s version of the events, and file this statement with the EEOC/DFEH.

The response is the employer’s written explanation of non-discriminatory reasons for having taken the adverse employment action about which the complainant is complaining. The goal in preparing the response is to convince the EEOC and DFEH that no discrimination occurred and that there is no cause to pursue the charge or conduct an on-site investigation of the employer’s premises. Generally, the response is written in narrative form and explains the legitimate, non-discriminatory reasons for the adverse action taken against the complainant.

­The DFEH/EEOC charge usually contains a request for documents. In responding to the document request, the employer or its legal counsel should make every effort to produce all documents requested. They should also review other documents related to the issues raised and, if these documents support the employer’s position, provide them as part of the response. In the response, the employer should explain the relevance of the documents and why they support the non-discriminatory reason for the employment action.

After receiving and reviewing the response, the DFEH or EEOC may:

  • Initiate conciliation efforts.
  • Make a determination that the claim is without merit, or the employer is not subject to the jurisdiction of the agency, and dismiss the case.
  • Conduct a further investigation, request additional information and documentation, conduct an on-site visit, and interview employees.

Thereafter if the charge is not withdrawn by the complainant, dismissed, or resolved through conciliation, the EEOC/DFEH will make a determination.

A determination of reasonable cause is a finding that it is “more likely than not” that discrimination has occurred. If a reasonable cause determination is made, the EEOC may sue the employer, or recommend litigation to the Department of Justice. If the EEOC decides against litigation, the complainant will be given a letter explaining his or her right to file a lawsuit in federal or state court.

A determination of no reasonable cause is a finding in favor of the employer. A “no cause” determination will result in dismissal of the charge.

If the EEOC discovers other discriminatory practices during its investigation of the claim, it can sue based on the newly discovered discriminatory practices, even if they were not alleged in the original charge.

If the DFEH determines that the law has been violated and it is unable to resolve the complaint through conciliation, the director may issue an accusation of discrimination, and have the complaint heard by the Fair Employment and Housing Commission. Alternatively, the complainant may obtain a right to sue letter and pursue the matter in civil court.
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