EEOC charges of discrimination: what are they, what do you do, and how to set yourself up for success

By Mallory Floyd
RMS Employment Counsel

Most, if not all, elected officials have heard the acronym “EEOC.” If you have not, you may ask, what is the EEOC? The EEOC is the U.S. Equal Employment Opportunity Commission, which is the federal agency that is responsible for enforcing the federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.

Current and former employees, and applicants, who believe an employer has discriminated against them for an unlawful reason may file a Charge of Discrimination with the EEOC for an investigation. A Charge of Discrimination is an allegation that you, as the employer, have discriminated against an employee. A Charge typically provides the employee’s basic contact information and contains a summary of the discrimination they allege to have suffered. Some of the most common claims of discrimination I see are disability discrimination, failure to accommodate a disability, failure to engage in the interactive process under the Americans with Disabilities Act (ADA), race discrimination, sex/pregnancy discrimination, and retaliation.

What should you do if you receive notice that a Charge of Discrimination has been filed against you? You should contact me, or JaNan Thomas, immediately. This will allow us to determine the deadline to respond, which is set by the EEOC, and allow us to begin our own investigation process. This process includes sending you a request to provide copies of your county’s personnel policy, your department’s executive policy, the employee’s complete personnel file, witness statements, and any video, audio, or photos you have related to the claim. Why is collecting this information important? We use this information, and other information that may be requested, to draft and submit a response, also known as a Position Statement, on your behalf.

There is no way to stop a Charge of Discrimination from being filed, and often testimony alone is not enough to support the fact that the allegations contained in the Charge are false. Therefore, the only way to set yourself up for success prior to an employee filing a Charge of Discrimination against you is with documentation.

Documentation can take many different forms and does not always have to be a formal memorandum. Examples of other ways to document employee misconduct include text messages between an employee and his or her supervisor, a follow-up email summarizing a conversation with you and your employee or a verbal warning, a note placed in the employee’s file about a performance, attendance, or other discussion with the employee, notes from training and/or counseling sessions with an employee, written warnings, and memos or emails to the entire office staff. Timesheets, if accurately kept, can also serve as documentation to prove a pattern of excessive absenteeism and tardiness. It is important to note why an employee was absent or late to work and that their timesheet accurately reflect the time they missed.

Regardless of the type, good documentation is the key to succeeding in the EEOC’s investigation into a Charge of Discrimination. What makes documentation “good?” Well, the documentation, no matter the type, should capture the employee’s misconduct with sufficient detail. This includes more than just the date of the event. Other questions documentation should be able to answer are, “What did the employee do wrong? Was anyone else involved? Has the employee previously been coached or trained in this area? If so, when? What is the expectation going forward?” These are just some of the questions that should be answered by the documentation that you put in an employee’s file.

One area where I have seen a lack of documentation for employees is for medical leave and accommodation(s) provided for an employee. All elected officials should maintain thorough documentation of an employee’s leave under the Family Medical Leave Act (FMLA), leave under the Americans with Disabilities Act (ADA), and any reasonable accommodations provided to the employee under the ADA or the new Pregnant Workers Fairness Act (PWFA). Copies of FMLA forms, communications with your employee’s healthcare provider as a part of the ADA or PWFA interactive process, doctor’s notes detailing work restrictions, communication between you and your employee about how you are accommodating his or her disability, and information about when accommodations started and when they will end can all be crucial pieces of documentation for me to attach as exhibits to the Position Statement.

In addition to documenting events involving your employees, you should also maintain documentation related to applicants as well. Since they are also protected under federal law, they also can file a Charge of Discrimination with the EEOC. What documentation would be relevant to an EEOC filed by an applicant? Any information related to vacancies, applicants, and interviews. This could include the dates the job posting was available, a copy of the job description for the vacancy, copies of all applications received, notes related to scheduling interviews, notes about anyone who declined to be interviewed, copies of all notes taken during the course of interviews, notes about why an applicant was not hired, any and all notes made by supervisors who may or may not provide input on applicants, any post-interview memorandums, and more. It is recommended to maintain these records for the statute of limitations which is three years.

Receiving notice that a Charge of Discrimination has been filed by an applicant, a former employee, or a current employee is never ideal. However, with proper documentation, the process can feel a lot easier, and the outcomes are generally more favorable. It may seem tedious at the moment since you are all busy; however, it will save you time spent on potential mediation or litigation and money for a potential settlement. Please reach out to me immediately if you receive a notice that a Charge of Discrimination has been filed or if you have any questions. I can be reached at 501-604-8677 or mfloyd@arcounties.org.