Superficial Responses to Charges of Discrimination, Quirky Question # 24

Quirky Question # 24:

We run a large food service company, with more than 100,000 employees.  Notwithstanding our best efforts to train our store managers regarding federal and state employment laws, we invariably have problems that result in claims of discrimination being filed with the EEOC or parallel state agencies.  In our experience, these federal and state agencies do not seem to be very even-handed.  No matter how compelling the reasons for our actions, we find these agencies unsympathetic to the evidence we advance in explanation for our decisions.  Given this experience, we have been trying to reduce our costs by minimizing the time we expend responding to the Charges of Discrimination.  We quickly gather relevant information and submit a superficial response.  The agencies are likely to support the employee anyway so our feeling is that this approach won’t make a difference in the agency determination.  We will, however, save money.  Do you have any concerns with this approach?

Dorsey’s Analysis:

I do have concerns that the “superficial response” approach you’ve outlined will exacerbate the problems you identified. Even worse, your approach is likely to cost your company more money in the long run. In my experience, the failure to invest appropriate time and energy into an investigation of a discrimination claim and to present persuasively the information you collect is a major mistake.

First, there are different perspectives on claims of discrimination. Some view them as baseless whining by disgruntled employees. Others (more enlightened in my view) see the claims as analogous to the canaries in the mines, alerting your company to potentially serious problems that need to be addressed thoughtfully. At a minimum (as I’ve suggested in other Blog responses), you need to conduct an investigation to find out whether your company has a problem. Your investigation may reveal a hypersensitive, idiosyncratic reaction by an employee that is largely meritless. Or, you may discover that your company has a manager who is unnecessarily exposing your firm to potentially significant liability because of attitudes and actions wholly inconsistent with your company’s well-articulated philosophies.

Second, regardless of which outcome is revealed by your investigation, a thoughtful response to a state or federal agency will benefit your company. For example, if the investigation demonstrates a complete lack of merit to the complaint, you want to tell that story to the agency involved. You not only should be able to persuade the agency to dispense with this claim, you may generally enhance the reputation of your company with the agency involved, a benefit that may assist your company on a closer claim in the future. Alternatively, if your investigation reveals that wrongful conduct occurred and that there is merit to the Charge, you can invest your energy on working cooperatively with the EEOC or the state agency to resolve the issue promptly. This approach has three primary potential benefits. Your firm’s reputation with the agency will be improved, again something that may redound to your benefit in a closer case in the future. Further, and perhaps more importantly, you will be able to take proactive steps to prevent similar problems from arising in the future. Perhaps the offending manager needs more training; perhaps he should be discharged. Either way, the complaint will have alerted you to the problem and enabled your company to address it. The third benefit is that your investigation should equip with you with the information you need to resolve the specific complaint involved, before it escalates into full-fledged litigation, with its attendant adverse publicity and risks of a substantial adverse judgment.

Third, my concern with the “superficial” approach you mentioned is that you will not know which of the two situations described in the preceding paragraph you are confronting. Is the Charge utter BS? Or, is it legitimate? If you treat both situations uniformly, neither your company nor the investigating agency will know. By the time your company determines which situation you are dealing with, you will have expended significant sums. Indeed, it is likely that your “superficial” response will have led to far more inquisitive questions in the “Request for Information” submitted by the agency in response to your submission.

Fourth, in the paragraphs above, I’ve posited the weak plaintiff’s case/strong plaintiff’s case alternative. As we all know, however, there are many cases that fall between these extremes. If you fail to examine these claims carefully and submit a superficial response to the investigating agency, you may well commit your company to a position that you would not have elected to take had a more comprehensive investigation been conducted. In other words, you will have handed the plaintiff a compelling argument that the reason you have advanced for the adverse action (whether a discharge or some other behavior) is a “pretext” or cover-up for the real reason for your action – discrimination.

Fifth, as a corollary to the preceding point, you do not want your response to the EEOC or state agency to constitute a document from which your company will be running for the duration of the dispute, whether at the agency level or in court. You do not want to put your managers in the position of having to explain at their depositions that the reasons set forth in the company’s submission to the federal or state agency were not the “real” reasons the company took the actions for which it is being criticized. These credibility-killing explanations may end up costing your company far more than it ever would have expended conducting a careful, deliberate investigation of the Charge of Discrimination and communicating the evidence you adduced during your investigation to the EEOC.

Finally, I recommend taking the long-term view, rather than focusing specifically on a given charge of discrimination. Demonstrate to the investigating agency that your company takes these issues seriously and is trying diligently to address problems of discrimination in an effective manner. Don’t give the agency reason to doubt the sincerity of your response you submit or, more seriously, your company’s commitment to principles of equal employment opportunity. This will only pique the agency’s interest in scrutinizing your company’s conduct, possibly leading to far more serious problems in the future.

As the above analysis illustrates, I believe strongly in conducting a careful, thoughtful investigation into a Charge of Discrimination. Interview the individuals with knowledge. Examine the relevant documentary evidence. Pin down the facts. Then, spend the time to organize and present this information to the investigating agency as persuasively as you can. Put the evidence in the broader context of the consistent efforts made by your company to support tenets of equal employment opportunity.

In short, the Charge-Response is not the place where your firm should be trying to save a few bucks. As described above, the money “saved” by your company by this approach likely will be consumed (and then some) by the potential problems this approach creates. At the same time, you risk damaging the reputation of your firm within important federal and state agencies.

Coincidentally, just this past week, the EEOC announced its 2007 statistics regarding the number of Charges filed. The EEOC reported that there were 82,792 Charges of Discrimination, approximately a ten percent increase over 2006. The most common claims were race discrimination (37% of the Charges), retaliation (32%) and sex discrimination (30%). These numbers illustrate that positive interaction with the EEOC, or parallel state agencies (whose statistics are not reflected in the EEOC data) regarding Charges of Discrimination, remains critically important for corporate America. [Note that a link to the EEOC’s Website is included under “Resources” on the right side of front page.]

Dorsey & Whitney

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