My Business’s Employee Filed, With The U.S. Equal Employment Opportunity Commission, A Charge Of Discrimination Against My Business In New Jersey. What Should My Business Do Now?

How Did My Business’s Employees File Charges, Against My Business, With The EEOC In New Jersey?

Under federal law, a person, such as an employee of your business, must file a charge of discrimination with the U.S. Equal Employment Opportunity Commission (“the EEOC” or “the agency”) within 300 days after the discriminatory act. The New Jersey District Office of the EEOC is located at:

Two Gateway Center
283-299 Market Street
Suite 1703
Newark, NJ 07102
Telephone: (800) 669-4000

The filing requirement is intended to afford, to the EEOC, notice of a claim so it may investigate and possibly resolve or prosecute the charge.

How Do the EEOC and the New Jersey Division on Civil Rights Cooperate With Each Other?

Because of their similarity of functions and volume of workloads, the New Jersey Division on Civil Rights (the “NJ DCR”) and the EEOC enter each year into a Worksharing Agreement designed to promote the goals of the laws they enforce. The Agreement reduced duplication of effort by dividing, between the two agencies, principal responsibility for resolving charges. The EEOC and the NJ DCR state that they defer to final determinations made by one another, but in practice this is not always true.

Under the Worksharing Agreement, each agency assists claimants in completing the forms required for filing charges with both. Each has named the other as its agent for receiving complaints.

How Does the EEOC Process My Company’s Worker’s Charges Of Discrimination In New Jersey?

The EEOC assigns an investigator to your business’s worker’s charge. The investigator is tasked with making a recommendation to the local office as to whether there are grounds to believe that your business, the employer, violated the law.

In response to a large backlog of cases, the EEOC now uses a triage system. Through this “Enforcement Policy,” begun in 1995, the EEOC assesses all types of discrimination cases when they are filed. How the EEOC handles the case depend on the agency’s initial view of the case’s possible merits.

Category A cases are charges for which further investigations are likely to result in a determination of “probable cause” that discrimination took place. Certain other charges are also deemed priorities and fall within this category. These cases enjoy the highest priority.

Category B cases are charges requiring further information (because they initially appear to have some merit but have need of additional evidence to determine whether a continued investigation is likely to result in a finding of probable cause) or cases in which the merits can’t be determined at the time the charge is filed. These charges receive second priority.

Category C cases are charges “suitable for dismissal.” These charges are those for which the local EEOC office has enough information to determine that it is unlikely that additional investigation will result in a finding of probable cause. Although the EEOC is required to serve such charges on the employer, the Enforcement Policy directs local offices not to ask employers for position statements in these cases. As a consequence, charges in this category will be quickly dismissed.

An adverse determination by the EEOC does not bar the claimant employee from subsequently filing in New Jersey state court and prosecuting, against the employer (your company), a lawsuit under the New Jersey Law Against Discrimination (the “NJLAD”).

In the cases it chooses to investigate, the EEOC requests a position statement from the employer (your business), informs the employee of the substance of your business’s position statement, and gives the employee an opportunity to respond in writing. In addition, some investigators will provide the employee’s attorney with the position statement of your business, the employer. Although the EEOC has the authority to convene a fact-finding conference during an investigation, most determinations are made without such a conference.

Once the investigation is complete, your company and the worker may each obtain the file from the district office. Under Title VII of the federal Civil Rights Act of 1964, as amended (“Title VII”) and the federal Americans With Disabilities Act (the “ADA”), the EEOC may expend as many as 180 days investigating the charge. When the investigation is completed, the EEOC will issue a “right to sue letter,” which authorizes the worker to sue the employer (your company) in court under the involved federal statute.

The EEOC dismisses the great majority of charges without a finding of “probable cause,” resulting in the issuance of a right to sue letter.

The EEOC often seeks to conciliate cases through voluntary mediation. The agency’s Manhattan office uses two in-house mediators as well as independent, volunteer mediators. The mediations occur before the employer (your business) has given, to the EEOC, the employer’s position statement.

The employee must file, in court, any lawsuit against your business within 90 days after receiving the EEOC’s Notice of Right to Sue.

What Can My Company Expect After My Company’s Employee Files, With the EEOC, A Charge Of Discrimination Against My Company In New Jersey?

When a charge of discrimination is filed against your company, the EEOC will notify your company within ten days. The notice will provide a URL for the respondent (your company) to log into the EEOC’s respondent portal to access the charge and to receive messages about the charge investigation.

Mediation and settlement are voluntary resolutions.

Over the course of the investigation, the EEOC may ask the employer (that is, your business) to respond to a Request For Information (an “RFI”). The RFI may ask your company to produce personnel policies, the charging employee’s personnel files, the personnel files of other individuals, and further, relevant data. So, too, the EEOC may ask your company to allow an on-site visit, to share contact information for other employees, or to make other workers available to be interviewed by the EEOC.

The EEOC encourages your business, the employer, to present any facts that your business believes show either (i) that the charging worker’s allegations are false or (ii) that, even if the charging worker’s allegations are true, they do not constitute a violation of the law.

As of 2015, the average time it took for the EEOC to investigate and resolve a charge of discrimination was about ten months.

The EEOC is entitled to all information relevant to the allegations contained in your company’s employee’s charge. The EEOC possesses the authority to subpoena such information. Your business, the employer, must obey such subpoenas.

If the EEOC determines that there is reasonable cause to believe discrimination has taken place, the EEOC will issue, to the charging employee and to your business, a Letter of Determination stating that there is reason to believe that discrimination occurred and inviting the charging employee and your business to join the agency in undertaking to settle the charge through an informal process called conciliation.

When conciliation fails to resolve the employee’s charge, the EEOC has the power to seek to remedy violations of federal anti-discrimination statutes by filing and prosecuting, in federal court, a lawsuit against the employer (your company).

If – as is usually the case – the EEOC elects not to litigate, the EEOC will issue, to the charging worker, a Notice of Right to Sue. As stated above, within 90 days after the charging employee receives the EEOC’s Notice of Right to Sue, the charging worker must file, in court, any lawsuit against your company.

In Responding To My Business’s Employee’s EEOC Charge Of Discrimination, What Strategies Should My Business In New Jersey Use?

Let’s talk about strategies for responding to an EEOC charge of discrimination or retaliation brought by an employee of your company in New Jersey.

A successful defense begins with your business having good policies and practices well before a charge is received.

Once an employee of your business has filed, with the EEOC, a charge of discrimination against your business, your business should conduct an internal investigation of that charge.

It is often helpful for your company, the employer, to confer with the decision-maker (for example, the person who fired the claimant worker) to get the decision-maker’s side of the story.

After your business meets with the decision-maker, your business should identify and review key documents, conduct witness interviews, and examine helpful (or potentially harmful) comparative information.

The position statement is your business’s opportunity to convey, to the EEOC, your business’s side of the story. Think about including, in your company’s position statement, an introduction, a statement of facts, an argument, and a conclusion.

The employer’s (that is, your company’s) position statement’s argument should address each of the charging employee’s key allegations.

Moreover, in your company’s position statement, it is useful and persuasive to highlight inconsistencies, falsehoods, and intentional omissions in what the charging worker has told the EEOC.

Think about including, in your company’s position statement, additional evidence that negates an inference of wrongdoing. For example, set forth any favorable statistics demonstrating that your business treated workers outside the protected class the same as, or similarly to, the complaining worker.

Consider submitting, with your company’s position statement, exhibits and supporting documentation.

Seriously consider utilizing the EEOC as a mediation program. The EEOC’s mediation program is free. The mediators generally are fair to employers and tend to be sophisticated.

Further, the settlement amounts in mediation are frequently quite reasonable, and are often lower than what your company, the employer, might need to pay to settle the case at a later stage.

An employer should not conceal witnesses or evidence, falsify documents, threaten or intimidate adverse witnesses, or lie to the investigator.

If your business gets an EEOC charge filed by one of your business’s workers, and your company realizes that it screwed up, your business should immediately begin undertaking to fix things. If your company acts quickly enough, your company might be able to rehire an employee whom your company fired wrongfully.

Bear in mind that the EEOC’s investigators are federal investigators who carry badges, and that they can lawfully interview your business’s employees without your business’s knowledge or consent.

Given that an EEOC charge is often the first stage in a dispute that can extend into state or federal court, your company, the employer, should strongly consider retaining a skilled New Jersey Employment Attorney.

If your business needs assistance or guidance on a labor or employment law issue and your business is located in New Jersey, call Attorney David S. Rich at (201) 884-2114.

Our firm’s labor and employment practice includes the following:

• Labor and Employment Litigation
• Employment Compliance and Consulting
• Business Contracts and Agreements

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