In my first article for the OutsideExperts column, I advocated for early mediation in EEOC claims. Since then, you may have had the chance to act on this advice only to find that the charging party declined the invite or perhaps you never received the invite in the first place.
Now that you must enter the EEOC administrative arena, how do you prepare for battle? In today’s constantly evolving electronic society, consider leveraging technology for aggressive administrative process investigation, especially if pre-suit depositions are available in your particular jurisdiction.
The advent of social media and the proliferation of email and texts have created a fertile field for the aggressive employment lawyer or human relations professional. But you must get at these treasure troves within the bounds of the law and your ethical obligations.
First, make sure your workplace Internet policy is as comprehensive as possible. It should specifically and unequivocally put employees on notice that what they do on their employer-provided electronic devices is not entitled any expectation of privacy. If you have laid the groundwork with a clear policy, then your in-house or third-party information systems analyst should be able to mine the data from that person’s company-owned devices and systems.
Second, never impersonate someone to gain access to social media. In some states, it’s against the law. And even when it isn’t against the law, seldom does this tactic go over well in court. This does not mean you should avoid research completely; just make sure your techniques are no more intrusive than what any member of the general public could do with a simple Internet search of a given name. If done in anticipation of litigation, it is your protected work-product.
Third, consider whether you can take their deposition while their charge is still pending. Perhaps one of the legally safest and most comprehensive ways to vigorously investigate a charging party is to ask your local state or federal judge to give you permission to take the charging party’s pre-suit deposition. As the name implies, a suit has not yet been filed, which is why it is generally not considered by courts to run afoul of the rule that no litigation can take place until the administrative process has run its course.
Taking a pre-suit deposition while a charge is pending is not risk-free, however. Realize that the charging party may very well ask the court for permission to take your client’s pre-suit deposition. If this is something you can tolerate under the circumstances, then it is probably worth the trouble.
This is especially so in the context of sexual harassment allegations, where the entire case hinges on the “he-said/she-said” situation. If the charging party has emails, photos, videos, audio recordings or other physical evidence to substantiate the allegations, it would be much better to learn that before you put a position statement on file in which you risk your client’s credibility with the EEOC on the harasser’s assurances to you that the conduct in question was consensual or never occurred in the first place.