Employer Rights During an EEOC Investigation

When an employee files a complaint against an employer with the Equal Employment Opportunity Commission (EEOC) or a similar state agency, an investigation may follow. Employers need to know their rights during an EEOC investigation.

Each investigative agency has its own rules, procedures, and policies for conducting investigations which can vary considerably, as can the method of appealing any adverse  agency decision to the court system. As a general rule, the agency is entitled to relevant documentation and to interview employees and other individuals who may have relevant information.

It is in an employer’s best interest to cooperate with the agency during an investigation, remaining polite and professional throughout the process. Involving an employment law attorney as quickly as possible to interview witnesses, review policies and personnel files is a good idea. It is important for employers to consult with legal counsel experienced with the particular agency involved in the investigation.

Investigation Process

Agency investigations are typically governed by the administrative process which follows the regulations and statutes applicable to the agency. Generally, following a complaint, a random inquiry, or an incident or accident, the agency begins an investigation which may progress through multiple procedural steps to a final determination which may be appealable to the courts.

The EEOC notifies employers that a charge of discrimination has been filed against them. The charge packet includes the name and contact information of the investigator assigned to the case and probably an offer to submit the case to voluntary mediation. Mediation can be helpful to resolve the charge early and more cost effectively, or to obtain early informal discovery from the charging party.

If mediation is not chosen, the case proceeds to an investigation. A critical piece of the investigation is the written statement of position documenting the employer’s side of the story. One of the easiest ways for an employer to ruin a case that goes to trial is to give a reason for termination different than that set out in the EEOC position statement.

While the investigation may also include requests for documents, an on-site visit, or contact information for witness interviews of management and non-management personnel, these requests still must comply with basic notions of relevancy and discoverability, so employers should consult with legal counsel before complying.

After the Investigation

Once the investigator has completed the investigation, the EEOC will make a determination. If the EEOC determines that there is no reasonable cause to believe that discrimination occurred, the charging employee will be issued a letter called a Dismissal and Notice of Rights that notifies the charging party of the right to file a lawsuit in federal court within 90 days from the date of receipt of the letter.  A copy of this document is also sent to the employer.

If the EEOC determines there is reasonable cause to believe discrimination has occurred, both employer and employee will be issued a Letter of Determination stating that there is reason to believe that discrimination occurred and inviting the parties to resolve the charge through an informal conciliation process.  The EEOC has a legal duty to attempt conciliation before filing a formal complaint.

The conciliation process offers a quicker resolution to a claim and may possibly help an employer avoid litigation and unwanted publicity, saving time and expenses associated with a lawsuit. The conciliation process allows an employer to negotiate with the EEOC as to how the employer might alter its practices to comply with the law, as well as what remedies will be provided to aggrieved individuals.  However, an employer is not obligated to resolve the employee’s claim through conciliation.

The EEOC has the authority to file a lawsuit in federal court or issue the same Notice of Right to Sue, releasing the employee to file his or her own lawsuit within 90 days if conciliation fails.

Challenging the EEOC

Employers have the right to challenge the EEOC’s lawsuit and compel the EEOC to reopen the conciliation process if they believe the EEOC moved too quickly through the conciliation process and initiated a lawsuit without giving the employer an opportunity to respond to a settlement offer from the EEOC with a counter offer.

If an employer believes that the EEOC rushed to file a lawsuit, it would be wise to file a motion to dismiss or stay the lawsuit until the EEOC has fully engaged in and completed the conciliation process. If conciliation does not provide a settlement between the parties, then the subsequent lawsuit will require an employer to address the implications of the EEOC’s investigation, including the EEOC Determination Letter, since this information may potentially be admitted as evidence at time of trial.

The information on this website is intended as general legal information only and should not form the basis of legal advice of any kind. Individuals seeking specific legal advice should consult a lawyer.


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New Jersey lawyer turned blogger, podcaster and legal changemaker.