The first thing you should do when you receive a letter from the EEOC or the Alaska Human Rights Commission is don’t panic. Last year they received 454 complaints of which 334 were closed because of a lack of substantial evidence, another 38 were closed for administrative reasons, 28 were mediated, 32 were settled, and 22 went to a hearing and only two of those cases found for the employee. In the few cases with a penalty, most incurred a penalty of a few thousand dollars, a handful were above $10,000 and a couple reached $75,000. Some of these cases included a requirement for anti-discrimination training, changing advertising materials, and updating non-discrimination policies. Finally, the employee has 180 days to file a complaint, which is short timeframe.
The second thing you should do is take the letter seriously. Actually, the second thing you should do is notify your insurer and place a litigation hold on all emails, voice mails, and internet usage records relevant to the alleged incident so that these items aren’t deleted. Then you can get to work on your response. You don’t have to provide a response, but it’s a good idea to do so. There’s two sides to the story and you want your side of the story heard. You have 30 days to investigate, gather and review document and write your response.
The documents you should gather are as follows: the employee’s personnel file, your employee handbook, documents relevant to the alleged discriminatory act, personnel documents of similarly situated employees, complaints or investigations related to the employee, payroll and compensation documents, and witness statements. You should also collect the job vacancy announcement, job qualifications, applications, interview notes, and other documents related to hiring decision.
Then you should interview witnesses such as managerial employees, decision makers, HR personnel, and anyone who has relevant information or saw the incident. You should ask the witnesses the 5 W’s (who, where, what, why, and when) and the 1 H (how). You should also ask if they are aware of any documents related to the alleged incident. Make sure your notes are legible and organized.
It’s good idea to have an attorney involved in this process. The attorney will add the attorney-client privilege to the process. You also want to make sure that the process is confidential and that nobody retaliates against the employee who filed the complaint.
Once the EEOC or AHRC receives your response, they will decide the extent to which they will investigate the matter to determine if there’s substantial evidence to support the claim. If there’s not substantial evidence, they will dismiss the complaint. If there is substantial evidence, they will refer the case to conciliation where the parties will try to settle. If they can’t settle, then it will go to a public hearing.