As we discussed a few weeks ago, the number of EEOC charges against Texas employers are on the rise. The reality is a former employee can file a charge without a lawyer and with relatively little effort. So the question becomes, once the employer receives the charge, how should they respond?
Generally, the EEOC will request information related to the claims asserted by the charging party. In Texas, the EEOC has essentially subcontracted out some of this work to the Texas Workforce Commission. No matter what agency is leading the investigation, I always encourage clients to be responsive, provide a full explanation, and avoid any further requests from the EEOC or TWC for additional information. Usually, requests may include witness statements, a response to the actual charge, evidence of other instances similar to the one alleged, and basic factual information.
In many cases, the EEOC claim will have been preceded by an unemployment proceeding with the TWC. Always review those filings, both by the employer and the charging party to make sure responses and allegations are consistent from case to case . There always tend to be some admission by the employee in a TWC proceeding that could potentially bear on the EEOC proceeding.
During the EEOC proceeding, the parties will also have the opportunity to mediate the dispute. Obviously, resolving cases is good and avoiding attorneys' fees is better. An EEOC mediation does not cost anything and if you have a case that you think should or could be resolved, mediation might be worth a shot. Some employers consider a request for a mediation a weakness, I disagree. Mediation provides both the lawyer and the employer an opportunity to size up what type of witness the former employee is actually going to be and provides for essentially some free discovery on a potential lawsuit.
The majority of charges examined by the EEOC result in a dismissal and a right to sue letter. Then the question becomes whether the employee will actually proceed with a lawsuit? If the employee is represented by a lawyer during the EEOC process, odds are the employer is more likely to see a lawsuit.
Employers, can of course represent themselves through the EEOC or TWC proceedings. Of course, as a lawyer, I recommend that they retain counsel to handle these matters. Though there are many employers who have been through the process on numerous occasions and are more than qualified to deal with it themselves. That is going to be a case by case, employer by employer determination.
Take the EEOC charge seriously, remember that whatever the employer files could potentially come back as evidence during a lawsuit. Make sure that your positions are consistent between unemployment proceedings and the EEOC proceeding.