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2015 HBA Continuing Legal Education_ Navigating the EEOC’s ...

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2015 HBA Continuing Legal Education:Navigating the EEOC’s Practice & Procedures
January 30, 2015IAN SCHARFMANTheScharfmanLaw Firm, PLLCSpecial Thanks to Martha Chace for her assistance and preparation of this presentation.
Pre-Filing Considerations
Pre-filing Considerations:Plaintiff
Laws that applyFederal:Title VII, 42 U.S.C. §2000eADA, 42 U.S.C. §12101ADEA, 29 U.S.C., §621State Law:TCHRAPurpose 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 1866Number 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 commissionFiling 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 CareUnemployment is typically filed before the EEOC chargeThis is usually okay because TWC’s (the state) findings don’t have an estoppel effect and not admissible as evidence in trialWhat 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 TerminationLoose lips can still sink ships: employers need to limit the extent of their communications regarding reasons for terminatingIf there is communication, keep it accurate and truthful
Filing the charge
Filing thecharge: 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 sueAlso required to bring claim under TCHRA - Jurisdictional--notarized and within 180 daysForm 5 or Administrative Charges (under CFR)within 300 days must include:Name, address, phone number of person making chargeSame as above of person whom charge is againstClear & concise statement of factsAppx. number of employees of respondent employeeStatement of any charges that may have been commenced with a State or local agencyWritten statement identifying the partiesEmployee 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 SubsequentLitigationSometimes a charge does not encompass all the claims contained in the lawsuitWhen 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 RequirementPost-ChargeRetaliation: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 chargeTheSingle FilingRule: 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 thecharge: Mediation
EEOC offers this to most parties and a mediation election form is provided to the Respondent after filingBoth parties must agree to mediateIf no mediation, charge is transferred to investigationEEOC mediation is voluntary and confidentialIf successful, no investigation; if unsuccessful, investigation
Filing the Charge: Mediation
Advantages of mediation (according to the EEOC)FreeEfficient(lasts 1-5 hours)Quick processing time of 84daysCompletely voluntaryMediators are neutral thirdpartiesConfidentialInformal processSettlement agreements are not admissions of any violations of the law and are enforceableHelps parties understand why employment broke downHelp repair therelationship
Filing thecharge: Timeliness
General RuleClaim 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 noticeBenefits 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 RuleContinuing Violation Theory:infederal law, the filing period is subject to tolling orestoppel, but should be applied sparinglyAllows courts to extend the time period of hostile work environment claims that involve incidents over time rather than discrete actsAt least one of the acts must be within the 180 or 300 day periodEquitable Tolling or EquitableEstoppelUsed sparingly by Fifth circuitIs used when the plaintiff is actively misled by the defendant about the cause of action or is prevented from asserting rightsThree 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 rightsParty who invokes bears the burden of demonstrating it applies
Filing the charge: Timeliness
Exceptions to the General RuleRelationBackTheory:Applies when the Form 5 is filed by the Charging Party in an untimely mannerEx., 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 insteadAmendments that raise a new legal theory don’t usually relate back to the time of filingException: can relate back if the new theory of recovery has essentially the same facts as the original chargeLily Ledbetter Fair PayAct: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 itCreated by the FPA, congress’s response to theLedbettercaseIs not applied under the TCHRA
Defendant’s notice of charge & Response
Defendant’sNoticeof 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 preservedInadvertent disclosure can severely harm employer’s defenseFailure to comply with duty to preserve relevant information can have serious consequences once litigation beginsEx. sanctions, spoliation instruction, etc…
Defendant’s Notice of Charge &Response: Investigation
Privilege Issues in the Investigation ItselfEmployers should have in house or outside counsel work on response to the EEOC charge to keep it privilegedPrivileges are subject to waiverCan be asserted by affirmative defense—protects employers from liability for otherwise unlawful harassment when no tangible employment action is taken against employeeFaragher 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 privilegeWant to avoid the lawyer becoming an operative fact witnessUse a “proxy” investigator, perhaps someone in HR of the company
Defendant’s Notice of Charge & Response: Investigation
Conducting a Robust InvestigationInvestigator should gather copies of all relevant documents and conduct interviews (under privilege)Have key witnesses review the draft position statement to check for 100% accuracyTell employees who are interviewed that the communication is privileged and advise them of company’s anti-retaliation policiesEmployees 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 anti-retaliation policies in writingReach 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
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 fashionIs 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 orderHas the employee ever received a final earning of the violation?What is the employee’s warning record during the last twelve months?
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 employmentWas 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 informationEEOC will disclose nearly all information in a charging party’s file Therefore, in response to RFI, employers must give due consideration to producing informationEmployers 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 cooperateSelective Waiver:allows parties to produce privileged documents without waiving the privilegeMany courts reject this doctrine with attorney-client privilege and attorney work productWhether & 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 chargeMay be in the form of aposition statementEmployers are given 14-30 days to respond, but can request more timePosition Statement:Should respond fully to each major allegationIt must be accurateCan be used against employer in trialShould be the type of image the employer wants to present—kind, compassionate, concerned about having the best for all the workersShouldn’t express anger toward the EEOCShould 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 agreementEEOC agreement only covers claims brought in the EEOC chargeIf any other claims need to be brought up, employer must bring a supplemental settlement
Plaintiff’s Rebuttal
Plaintiff’sRebuttal: Obtaining the Employer’s Position Statement
At this stage, the EEOC reviews received documents to make decision about continuing investigation or notEEOC investigator follows up with Charging Party to discuss the position statement and requests a response if they continue the investigationIf counsel for charging party, should obtain a copy of the position statement and prepare a rebuttal to submit to EEOCNeed to know policies of the EEOC District officeHouston—allows CP or attorney to obtain the position statement and sign a non-disclosure agreement or agree to sameDallas—doesn’t send the statement, only provided upon request, but request discussion of points raised by Respondent
Plaintiff’sRebuttal: Preparing a Rebuttal
Need to persuade the EEOC that the Charge deserves a Cause FindingShould present an overview of the facts and describe the CP’s positive role in the companyFacts should describe the scenario within which the CP found themselves in that gave rise to the claimShould be clear as to specific factual allegations—the more information, the betterIdentify individuals to support the claimsDiscuss legal authority and interpretation of the law as necessary
Handling the EEOC’s Follow-up Investigation Efforts
Handling the EEOC’s Follow-up InvestigationEfforts: RFI/RFP
There arefew limitsto the EEOC’s investigatory powersAre not limited to claims in the charge, can consider other locations in systemic claims, and look into other violations of other employment lawsEEOC process:New charges are given a recommendation as to scope of the investigationThen, EEOC prepares a written investigative plain to guide the commissionIncludes a Request for Information (RFI), employer position statement, witness interviews, on-site investigations,or other toolsWill issue an RFI to employer as the first step and follows the Compliance ManualEmployers can object to the RFI on grounds of undue burden, but should provide alternative forms of information
Handling the EEOC’s Follow-up InvestigationEfforts: Interviews & On-site Investigations
EEOC schedules these in advance, but no notice to employer is necessaryInterviews can be connected at worksite unless witness wants anonymityOnsite interviews require employers consentInterviews can happen before a position statement is filedEmployer or attorney cannot be present, unless management personnel
Handling the EEOC’s Follow-up InvestigationEfforts: Subpoenas
EEOC’s subpoena power is broad and can likely gain access to all non-privileged materials within its investigative planThough broad, should onlybe used after other methods are attemptedEEOC can subpoena any person who has custody or control of relevant evidenceLimits 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 provideEEOC withadditional briefing
Dismissal: Initiated by the EEOC
After investigation, the investigator will make a decision to recommend dismissal or finding causeRight to Sue letter: issue when there is a recommendation for dismissal without a finding of causeThis states that the commission is unable to conclude that a violation of law has occurredCharge is on file for 180 days before right to sue letter is givenunless EEOC district office has been granted a waiver by commission by backlog of casesReceipt of right to sue letter triggers a filing deadline of 90 daysthat 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 investigationConsider 180 day abatement issues with courts or seek it under district office waiverProcedures 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 retaliationEmployers should not assume that just because there is no suit based on the right to sue letter that there will not be a suitCould later get a notice of right to file civil action letter from TWC-CRDSome anti-discrimination laws don’t require an employee to exhaust administrative requirementsAn example is intentional race discrimination and retaliation under Section 1981
Cause Findings
Cause Findings: Preliminary Determination Letters
EEOC will often issue a preliminary determination letterEx: 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 evidenceCP should consider whether additional evidence would suffice or request right to sue letterEEOC 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 occurredWill provide a factual basis for the finding that a violation has occurredSets forth the violationsWill say why certain claims weren’t reached if applicableOnce it is sent, EEOC will attempt conciliation with the employer to develop a remedy for the alleged discrimination
Cause Findings:Conciliation
Legal PointersEEOC has a statutory obligation to attempt conciliation with employersGood 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 violatedOffer an opportunity for voluntary complianceRespond in a reasonable and flexible manner to the reasonable attitudes of the employerPractice PointersOften, 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: By EEOC
When Title VII was enacted in 1964, it authorized private actions by individual employees and public action by the AGThen, EEOC only had the authority to investigate and conciliate charges of discriminationIn 1972, Congress amended Title VII, and the EEOC can now bring it’s own enforcement actionsEEOC can bring suit on a charging party’s behalfEEOC actions are not subject to state statute of limitations, but are in the federal enforcement structureIs in a unique position to litigate systemic casesLimits 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 laterNo 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 receiptAt this stage, the party needs to assesswhich claims are ripe or viable for litigation within the scope of the charge,which venue or forum is appropriate, andwhether 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 plaintiffShould 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 pledA charging party may intervene in a Title VII action brought by the EEOC, but not an ADEA action





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2015 HBA Continuing Legal Education_ Navigating the EEOC’s ...