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Labor: Pay now or pay later

The perils of giving scant attention to EEOC responses

Although it is difficult to ascertain the percentage of discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) that ultimately result in lawsuits, the number is small. For this reason, many companies devote little time and resources to responding to EEOC charges, often assigning the task to the manager in charge of the complaining employee (who has no legal or human resources training) or to a human resources assistant (who has no legal training, has only a superficial familiarity with the complaining employee, and may not command the attention of the employee’s manager to resolve questions).

In many situations, the lack of attention devoted to the EEOC response may not negatively impact the company. In others, however, the consequences may be extremely negative—and costly.

Responding to these requests is a balancing act. The company should provide enough information to demonstrate good faith and convince the EEOC there is no merit to the discrimination charge, but it also should seek to avoid providing information that is not directly relevant (and potentially negative to the company), because in the event of litigation the employee can obtain the information submitted by the company through a Freedom of Information Act (FOIA) request.

Recently, many EEOC offices have begun routinely requesting additional information after receiving the company’s initial submission. Although a company does not want to be perceived to be hiding information, knowing that a subsequent request is likely may argue in favor of withholding “borderline” irrelevant information with the first submission. The EEOC’s subsequent request, made after the EEOC has reviewed the company’s initial submission and thus has more factual background, may not seek the objectionable information.

Contributing Author

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Craig Oliver

Craig Oliver is a partner with Bradley Arant Boult Cummings LLP (Nashville, Tenn.) and serves as vice-chair of the firm’s Labor and Employment Practice. His...

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