Did your organization recently receive an EEOC (Equal Employment Opportunity Commission) complaint? Are you worried about how to handle the process if you do?
If so, then you must know how to respond to it appropriately. Otherwise, your organization could face a discrimination lawsuit — which can have very dire consequences. A public charge of discrimination against your company could negatively affect your reputation, cause a spike in turnover, turn away your customers, and even mean the end of your business.
That’s why understanding the EEOC complaint process is necessary for any organization, even if you pride yourself on being a staunch equal-opportunity employer. That’s because the EEOC Office has filed more administrative charges due to formal complaints than in recent years, and the trend isn’t set to change anytime soon.
In 2022, the EEO Office received 73,485 new employment discrimination charges, which was an almost 20% increase from the previous year. Also, in 2022, 61% of U.S. workers said they’ve experienced workplace discrimination. These statistics show that EEO complaints are widespread, so you need to know how to prepare for them to avoid potentially damaging lawsuits.
That’s why we’ve put together this guide containing everything employers need to know about the EEO complaint process. Read on to learn how to properly respond to an EEOC complaint, as well as how to avoid common mistakes employers make when addressing them.
Understanding the EEOC complaint process
EEO laws protect all U.S. employees from discrimination against their sexual orientation, race, religion, age, gender, national origin, disability, or genetic information.
Therefore, employees are free to file EEOC complaints if they feel they’ve been a victim of the following:
Sexual harassment (including pregnancy).
Retaliation (when an employer fires an employee for defending their civil rights).
Gender identity discrimination.
Not accommodating a disability.
Not hiring an employee due to their national origin.
Employees that want to file a complaint can either submit it by mail or in person at the nearest EEOC office (you can find the one closest to you by viewing this map). Another option is to file the complaint online through the EEOC public portal at EEOC.gov.
The EEOC also recommends that employees include the following information in their complaints:
The employee’s name, address, and telephone number.
The name, address, and phone number of the business they’re filing the complaint against.
A brief yet detailed description of the event that was unfair or discriminatory.
The dates when the event(s) transpired Once the complaint is filed, there’s a multi-stage process that takes place to process it.
Besides individual employees filing complaints, an organization or agency may file a discrimination complaint on an employee’s behalf to protect their identity.
The post-complaint process
Once an employee has filed a charge against your organization, the EEOC will send them a charge number so that they can track the progress of their complaint’s processing. At the same time, the EEOC will send you a copy of their complaint.
In some cases, the EEOC will offer mediation to the employee and employer as an alternative to resolve the issue. Should you agree to this, the EEOC will provide you with mediators to help you work through the issue and come up with potential solutions. If mediation isn’t an option or you choose not to do it, you’ll have to provide the EEOC with a written answer to the original complaint.
They may also ask you to answer questions they have about the complaint, but this doesn’t always happen. After you send a written response, the EEOC will hand the case over to one of their internal investigators. During this time, the investigator may want to conduct interviews with your employees and gather documents that pertain to the discrimination case.
If the investigation doesn’t uncover evidence that any discrimination took place, you’ll receive a notice from the EEOC entitled ‘Dismissal and Notice of Rights.’ However, the complainant will still have 90 days to file a civil action if they want. If the EEOC investigation does find evidence of discrimination, you’ll receive a ‘Letter of Determination’ that explains their findings.
Additionally, the EEOC will attempt to work with you and the employee in question to find a resolution. If you are able to reach a resolution, the employee will waive their right to go to court over the issue. If no resolution can be found, the EEOC must decide whether to take the case to court or not. Due to limited resources, the Commission can’t file a lawsuit for every discrimination case they uncover. If they decide not to take the case to court, the employee will receive notice, and they’ll have a 90-day time frame to file a lawsuit of their own if they so choose.
It’s important to note that federal employees and job applicants must go through a different process to file a complaint of discrimination.
The federal sector EEOC complaint process
Before federal employees can file a discrimination complaint, they must first speak with the EEO Counselor at their institution or agency. In most cases, the employee must speak with an EEO Counselor within 45 days of the disputed event. EEO Counselors will offer the employee the option to either take part in EEO counseling or an alternative dispute resolution (ADR).
If neither of these options is satisfactory, the employee may choose to file a formal complaint against their agency via their EEO office. However, they must file the complaint within 15 days of speaking with an EEO Counselor. Once the complaint is filed, the federal agency will determine its legitimacy. If it’s not dismissed, they’ll conduct an in-depth investigation into the matter.
They will have 180 days from the time the complaint was filed to investigate the discrimination issue.
Once the investigation is complete, the agency will give the employee two options. They can place a hearing request before an EEOC administrative judge or allow their agency to determine whether or not the discrimination occurred.
If the employee lets their agency issue a decision and no discrimination is found, they can appeal the decision to the EEOC or challenge it in federal district court. However, a time limit applies here, as the employee will only have 30 calendar days to appeal the final agency decision after receiving the final order.
How to respond to an EEOC complaint in 5 steps
Now that you know the basics of how the formal complaint process works at the EEOC, it’s time to learn how to provide a written response to a complaint. If you recall from the previous section, the EEOC will want you to provide them with a formal written response to the original discrimination complaint.
It’s imperative that you know how to do this properly. Otherwise, you may wind up prolonging an issue that you could have resolved with your written response. Since discrimination issues can lead to crippling lawsuits, you need to know how to defend against them to protect your organization.
Here are the steps you should take when preparing a response to an EEOC complaint.
Step #1: Describe the issue thoroughly
Most EEOC complaints are vague in description, containing only a paragraph or two summarizing the issue. They also tend to contain conclusory assertions that fail to provide solid evidence or take in the big picture of your organization’s culture. As such, the worst thing you can do is be just as vague with your response.
Instead, you have an excellent opportunity to state your defense here and provide more context to the issue. Do your best to demonstrate that you had legitimate business purposes for any adverse actions you took, such as letting an employee go for their poor performance instead of their age or national origin.
Step #2: Provide context about your organization
Remember, the EEOC won’t know much about your organization beyond what’s in the original complaint. That means you should provide some context about your organization, your culture, and what you do.
For instance, if most of your revenue depends on the talents of your salespeople, it could provide context for why you let an employee go due to their consistently poor sales performance.
Step #3: Include any supporting documents
This step is one of the most crucial, so you definitely shouldn’t skip it. If you have any documentation that proves you didn’t discriminate, you should include it in your written response to the EEOC. Going with the example in step #2, if you can provide the employee’s poor performance reviews as proof, your claim will hold more weight.
Also, emails and instant messages are fair game for including in your response, so don’t forget to include those if they prove your innocence (i.e., including emails where the employee is exhibiting the behavior they were reprimanded for, such as inappropriate language or threats).
Step #4: Mention similar issues with former employees
One of the best things you can do with your response is to demonstrate your consistency with past decisions.
For example, if another employee was let go for similar behavior in the past, bring it up and provide proof. That will let the EEOC know that you’re remaining consistent with your policies and not attempting to discriminate against anyone.
Step #5: Keep it confidential
You need to maintain confidentiality in your response, especially if the employee in question still works for your organization. That’s especially true if you know the EEOC investigator is going to reach out to the employee.
How do you keep your response private?
You can by referring to the employee as ‘employee X’ instead of stating their name.
EEOC complaint process: Common mistakes to avoid
Besides knowing how to respond to an EEOC complaint, there are also some common pitfalls that you should do your best to avoid.
Not having the proper documentation
If you aren’t able to document your side of a discrimination incident, it’ll be as if it didn’t even happen.
The EEOC will want to see proof that you didn’t discriminate against the employee filing the complaint, and the best way to do that is to provide documentation like:
Company policy violations
Records of disciplinary actions
Records of behavioral issues
As a rule of thumb, your HR department should make a habit of documenting every incident that occurs with your employees. That way, you’ll have plenty of proof to back up your case should you receive an EEOC complaint.
Not having an anti-discrimination policy
In the eyes of the EEOC, your organization should be the first line of defense against employment discrimination. As such, anti-discrimination needs to be a priority, so you should have an up-to-date EEO policy included in your employee handbook. It should cover which behaviors are unacceptable, any disciplinary actions you’ll take, and clear instructions on how employees can file formal complaints.
Inconsistency with enforcing policies
One of the best ways to avoid discrimination complaints is to treat your employees equally 100% of the time. That means enforcing your workplace policies on anyone that violates them, regardless of their position. This consistency will also protect you should you receive a complaint, as you’ll be able to demonstrate that you don’t pick favorites.
Wrapping up: The EEOC complaint process
EEOC complaints aren’t to be taken lightly, as they can cause serious trouble for your organization. Instead, you should prepare a detailed written response complete with any documentation that states your side of the story. Beyond that, your best defense is to treat all your employees equally, enact an EEO policy at your organization, and maintain comprehensive files on every employee.