Here Comes the EEOC!

August 2014
By: Walter J. Liszka

As most private employers are well aware, numerous federal and state government agencies conduct on-site investigations and have been doing so for a long period of time [for example, Occupational Safety and Health Administration (OSHA inspectors) and United States Department of Labor (USDOL inspectors)]. Soon to be joining this array of "government visitors" is the Equal Employment Opportunity Commission (EEOC). The EEOC is engaging in a new and more aggressive investigation strategy. It will no longer accept an employer's Position Statement at face value and is now demanding on-site visits to interview witnesses and gather information. It is the opinion of the author that these "on-site visits" are merely "fishing expeditions" conducted by the EEOC to gather any and all harmful information it can find out about an employer, be it for the case at issue or to develop a bigger case in the future. Suffice it to say that during these investigations, the EEOC representative will do everything he/she can to "bait the hook" and catch the biggest fish.

Obviously, these EEOC on-site investigations offer very little benefit to an employer. A wise employer must be prepared for this scenario and preparation should follow at least the following concepts:

• The EEOC investigator will want to have a tour or walk-around of the employer's facility which is the alleged sites of the alleged discriminatory activity referenced in the Charge of Discrimination. The wise employer will make absolutely certain that all required federal and state employment law posters are posted and readily available and viewable by employees. The wise employer will also "protect itself" from obvious violations of laws administered by other federal agencies (for example, OSHA safety regulations) because it is a well-known fact that government investigators from one (1) agency who have no authority to enforce a law or statutory responsibility will pass on the alleged violation to their compatriots in the agency that does enforce that law. It is an absolute necessity that the EEOC investigator be accompanied at all times on the tour by a designated employer representative. The chosen individual should be familiar with the facility and comfortable in representing the employer in dealing with the investigator.
  
• The EEOC investigator will, in all probability, come for the on-site investigation after the employer has filed its written Position Statement and/or provided any requested evidence. The investigator will question witnesses, both rank-and-file and management personnel, to see if the stories match the Position Statement. That being the case, it is an absolute necessity that any management personnel who have any involvement in the alleged discrimination claim review the Charge of Discrimination and the company's written Position Statement and any evidence provided so they can familiarize themselves with the case and not jeopardize the employer's presentation by a contrary or ill-timed response. Any management personnel who have no knowledge or involvement in the Charge at issue should clearly tell the investigator they are not involved in the matter!
  
• The EEOC investigators will "grill" any Human Resources representative with regard to his/her general knowledge of employment laws, potentially his/her educational training, and what training is provided to management personnel and rank-and-file employees with regard to discrimination and harassment. The old adage, "ignorance of the law is no excuse," is extremely important with regard to Human Resources representatives. They should be extremely knowledgeable of anti-discrimination laws and the employer's obligations under those laws. If, for example, there is no Human Resources representative on-site, the employer should have in place someone in the management ranks at that facility who is knowledgeable about Human Resources issues and can accurately identify the individual within the employer's organization whom that person contacts for guidance and training in Human Resources issues.
  
• Whomever the designated representative is of the employer who escorts the EEOC investigator and is present during interviews of management personnel should be doubly knowledgeable about the employer's written Position Statement and any evidence presented in its defense to the Charge. If, for example, the EEOC investigator is slanting questions in a certain way to draw a harmful response or, in the alternative, is totally ignoring the employer's presented evidence, this person should bring that to the attention of the EEOC investigator to make sure that a "complete and accurate record" is developed.

The employer must also consider whether or not it wishes its counsel who is representing them in the EEOC matter, to be present for the on-site investigation. While some readers of this article will view this comment as the author's attempt to sell an employer on bringing its attorney on-site and therefore engendering larger attorney's fees, the old adage of "penny wise, dollar foolish" may come into play. Counsel certainly will be skilled in how to deal with the investigator and probably better able to control/direct the investigation.

It is obviously the choice of the employer as to how to proceed with regard to any EEOC investigation and certainly how to proceed with regard to an on-site investigation. Good preparation and strategies are important in this regard. Certainly the EEOC investigator will be "baiting their hook" to catch the biggest fish. If an Employer wants to win and avoid prolonged problems with an EEOC Charge, it will make sure that all of the potential fish have been well fed prior to the EEOC investigator's arrival and are able and willing to avoid the bait.

Questions? Contact Walter J. Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com .