Employment Litigation and Governmental Entities

Transcription

1 Employment Litigation and Governmental Entities Prepared and presented by: Kristin Ellis Berexa Farrar & Bates, L.L.P. 211 Seventh Avenue North, Suite 500 Nashville, Tennessee (615)

2 EMPLOYMENT LITIGATION AND GOVERNMENTAL ENTITIES I. FEDERAL LAW A. Equal Employment Opportunity Commission ( EEOC ) The Equal Employment Opportunity Commission was mandated by Title VII of the Civil Rights Act of 1964, and it was formally established in The EEOC enforces federal laws that prohibit discrimination against job applicants and employees based upon their race, color, religion, sex (including pregnancy through the Pregnancy Discrimination Act of 1978), national origin, age, disability, or genetic information. Additionally, the EEOC enforces laws that make it illegal to retaliate against one who complained about discrimination, filed a charge for such, or took part in an employment discrimination investigation or lawsuit. Not all employers are covered by EEOC laws, but most employers with fifteen or more employees are, as are most labor and employment agencies. If age discrimination is alleged, the number of employees must be twenty or more. Also, not all federal workplace laws prohibiting discrimination are governed by EEOC. Notable examples that are not governed by EEOC include the Social Security Act, the Family and Medical Leave Act, and parts of the Americans with Disabilities Act. Such laws that are not governed by EEOC are predominately handled by other federal agencies, such as the Department of Justice and Department of Labor. EEOC does cover Title VII of the Civil Rights Act of 1964 (Title VII), the Equal Pay Act of 1963 (EPA), the Age Discrimination in Employment Act of 1967 (ADEA), and Title I of the Americans with Disabilities Act of 1990 (ADA), among others. 1

3 Individuals often choose to file a private suit against discriminating employers, but even so, they must first file a complaint/charge with the EEOC within 180 days of learning of the discrimination. If there is a state agency with which they can file a complaint/charge as well, individuals have 300 days to file with the EEOC. In Tennessee, since the Tennessee Human Rights Commission exists, individuals have 300 days to file with the EEOC if that is the avenue they wish to pursue. Within ten days of filing the complaint, the EEOC sends notice of the complaint s filing to the employer. If the complaint is untimely or does not include allegations that support a violation of the law, the EEOC may dismiss the charge with no further investigation. For an individual to proceed with a private suit in federal court, he or she must obtain a Right to Sue, issued by the EEOC, and this may be issued if more than 180 days have passed since the initial filing of the charge. When an employer covered by the EEOC is charged with discrimination, the EEOC has the authority to conduct an investigation during which it assesses the allegations and makes a finding. If discrimination is found, the EEOC does not automatically file a lawsuit. Rather, it tries to settle the charge through mediation, and if this is unsuccessful, it does have the authority to file a lawsuit, or, it will provide the charging party with a Right to Sue letter which allows the charging party to file a private action against the employer. In 2015, over 89,000 total charges were filed, a slight uptick from the previous year but less than the nearly 100,000 charges in 2010, 2011, and Individuals may charge multiple types of discrimination, and the most common types in 2015 were retaliation (present in 44.5% of all charges), racial discrimination (34.7%), disability discrimination (30.2%), and sexual discrimination (29.5%). EEOC filed 174 suits in 2015 and achieved 171 resolutions. 2

4 In instances in which an individual files a charge with the EEOC against a governmental entity, he or she may receive compensatory, but not punitive damages. The limits for compensatory damages (not including back pay or front pay) for each complaining party are $50,000 for employers with employees, $100,000 for employees, $200,000 for employees, and $300,000 for more than 500 employees. 42 U.S.C. 1981a(b)(3). In addition to compensatory damages, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney s fee U.S.C. 1988(b) (2000). B. Title VII A large portion of the claims for which the EEOC is responsible are enumerated in Title VII of the Civil Rights Act of Title VII prohibits discrimination by covered employers based upon race, color, religion, sex, or national origin, and it has been supplemented to include pregnancy, age, and disability. To be a covered employer, an employer must have at least 15 employees. Additionally, Title VII prohibits employers from discriminating against a person because of his or her association with another individual of a particular race, color, religion, sex, or national origin. While Title VII does not explicitly prohibit discrimination based upon one s gender identity or sexual orientation, EEOC itself has held that such forms of discrimination are covered by Title VII. See Macy v. Dep t of Justice, EEOC Appeals No (Apr. 20, 2012); David Baldwin v. Dep t of Transp., EEOC Appeals No (July 15, 2015). See also Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004) (holding that a transsexual person sufficiently pleaded claims of sex stereotyping and gender discrimination under Title VII); Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006) ( [I]ndividuals who are perceived as or who identify as 3

5 homosexuals are not barred from bringing a claim for sex discrimination under Title VII. ) Like other claims covered by the EEOC, there are no punitive damages for Title VII claims against government entities, and the categorized limits on compensatory damages are the same as those listed above, as is the discretionary allowance of attorney s fees. C. Americans with Disabilities Act ( ADA ) The Americans with Disabilities Act of 1990 protects the well-being of disabled individuals in a variety of ways. Title I of the Act, enforced by the EEOC, prohibits covered employers with at least fifteen employees from discriminating as to disability, defined under the ADA as a physical or mental impairment that substantially limits one or more major life activities of [an] individual. 42 U.S.C (1)(A) (2009). It requires that such employers provide reasonable accommodations to employees who are qualified individual[s] under the ADA, meaning employees who, with or without reasonable accommodation, can perform the essential functions of the employment position. 42 U.S.C (8) (2009). An employer has the duty to engage in a good-faith interactive process with the employee to determine his or her disability and work toward finding a reasonable accommodation. Providing a reasonable accommodation could mean making the facilities accessible and usable for disabled employees, restructuring one s job or schedule, reassigning an employee to a vacant position, modifying equipment, adjusting examinations, training, or policies, providing interpreters, or other similar actions, but it does not mean that an employer must allow an employee to stop performing the essential functions of his or her job. 42 U.S.C (9) (2009). Also, an employer does not have to make a reasonable accommodation for an employee if it would impose 4

6 an undue hardship on the employer, meaning that it would require significant difficulty or expense relative to the size, resources, and nature of the employer. 42 U.S.C (10) (2009). Additionally, though pregnancy is not a disability, a pregnant employee may develop impairments that qualify as disabilities under the ADA, even though they are temporary. Employers must make reasonable accommodations for such individuals as they do for others who are protected by the ADA and may even be required to go beyond what they would usually offer as a reasonable accommodation for a disabled employee. Title II prohibits discrimination based upon disability by all public entities, including cities, counties, and states and is enforced by the U.S. Department of Justice (DOJ). All programs and services offered by public entities must provide both physical and programmatic access to individuals with disabilities. Title II also requires that public transportation provide for disabled individuals, enforced by the U.S. Department of Transportation, and the Office of Fair Housing and Equal Opportunity enforces Title II s prohibition of disability discrimination in public housing and housing assistance. Title III, enforced by the DOJ, guarantees equal enjoyment of all places of public accommodation, including cyberspace in some jurisdictions. It also includes guidelines for making new construction accessible to those with disabilities and protects the use of service animals. Title IV, enforced by the Federal Communications Commission, governs telecommunications, and Title V features miscellaneous provisions. As for damages, under the ADA, private individuals may recover monetary damages against cities and counties, and the limits for compensatory damages are laid out in 42 U.S.C. 1981a(b)(3), the same statute as mentioned above for the EEOC. While punitive damages are permitted when an employer engages in discrimination 5

7 with malice or reckless indifference to an employee s federally protected rights, this does not apply to a government, government agency, or political subdivision. 42 U.S.C. 1981a(b)(1). Attorney s fees may be allowed at the court s discretion to the prevailing party, if not the United States. 42 U.S.C. 1988(b) (2000). D. Family and Medical Leave Act ( FMLA ) The Family and Medical Leave Act of 1993 provides eligible employees of covered employers up to twelve workweeks of unpaid, job-protected leave within twelve months for certain family and medical reasons. During the leave, group health insurance coverage continues under the same terms and conditions as if no leave were taken. Some accepted reasons include the birth of an employee s child and caring for the newborn within its first year, an employee adopting or fostering a child within one year of the child s placement, an employee caring for his or her spouse, child, or parent with a serious medical condition, and an employee s own serious health condition. If an employee leaves to care for a seriously injured or ill servicemember who is the employee s spouse, child, parent, or next of kin, the employee may take a leave of up to twenty-six weeks rather than twelve within one year. Additionally, after the Supreme Court legalized same-sex marriage, the U.S. Department of Labor s Wage and Hour Division, which enforces the FMLA, revised the definition of spouse to include married same-sex couples. An employer is considered covered if it is a private-sector employer with fifty or more employees, a public agency (local, state, or federal) of any size, or a public or private elementary or secondary school of any size. An employee is deemed eligible if he or she works for a covered employer, has done so for at least twelve months with at least 1,250 hours of work, and, if a private-sector employee, the employer has at least fifty 6

8 employees within seventy-five miles of the location in which the employee seeking leave works. A covered employer who violates the FMLA is liable to its affected employee for damages equal to the amount of any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation U.S.C. 2617(a)(1). If the aforementioned are not denied or lost, then the employee may recover his or her actual monetary losses from the violation. Id. In addition to compensatory damages, the court must allow a reasonable attorney s fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant. 29 U.S.C. 2617(a)(3). Since no mention of punitive damages is made in the Act, courts have held that no punitive damages are permitted. E. Age Discrimination in Employment Act ( ADEA ) The Age Discrimination in Employment Act of 1967, enforced by EEOC, prohibits discrimination against employees and applicants aged forty and older in hiring, promotion, discharge, compensation, or terms, conditions, or privileges of employment. As mentioned earlier, employers covered by the ADEA must have twenty or more employees rather than the fifteen required by the other laws covered by EEOC. Other covered employers include employment agencies, labor organization with twenty-five or more members, the federal government, and state and local governments. Specifically, the ADEA prohibits actions such as employers stating or advertising that a certain age is preferred for a given position, setting arbitrary age limits, and forcing retirement at a certain age. There are exceptions, though, if age is a bona fide occupational qualification reasonably necessary to the normal occupation of the particular business U.S.C. 623(f)(1). Therefore, an employer could discriminate as to age when such is obviously necessary, like casting a role for a film, or 7

9 when the safety of the public is at stake, such as when the employee operates public transportation. A covered employer cannot deny an employee benefits because of his or her age, and an employer cannot reduce an employee s benefits unless the cost increases with age and the employer incurs equal costs for older employees and younger employees. Also, employers are prohibited from making policies or practices that have a disparate impact on older workers. Damages function differently under the ADEA than other laws covered by the EEOC. Cities and counties may be sued for monetary damages, and if these employers are found to have engaged in prohibited age discrimination, appropriate relief includes reinstatement, promotion, and the payment of lost wages. 29 U.S.C. 216(b). If the employer willfully violated the ADEA, then liquidated damages equal to the aforementioned damages may also be awarded, thus allowing double recovery in such cases. 29 U.S.C. 626(b). Multiple circuits have found that these liquidated damages may be enforced against government employers, and the U.S. District Court for the Middle District of Tennessee has held likewise. Taylor v. Robertson Cty. Bd. of Educ., No. 3:15-cv-780, 2015 WL , at *4-5 (Nov. 25, 2015). However, neither the Sixth Circuit nor the Supreme Court has made a holding as to this issue. It is established, though, that the prevailing party, besides the EEOC or the United States, may be allowed reasonable attorney s fees and expert fees, at the court s discretion. 42 U.S.C. 2000e-5(k). II. STATE LAW A. Tennessee Human Rights Commission ( THRC ) The Tennessee Human Rights Commission functions similarly to the EEOC. THRC protects employees from workplace discrimination based on race, color, national 8

10 origin, gender, age, religion, and disability. While employers must have fifteen (or twenty, if age discrimination) employees to be covered by the EEOC, employers only need to have eight or more employees for coverage under the THRC. In instances of retaliation claims, employers only need one employee to be covered by the THRC. If an employee feels that he or she is discriminated against, the employee must file charges with THRC within 180 days of the last discriminatory act, unless there is a continuing violation. If the charge is filed after 180 days, it will be transferred to the EEOC, as long as it is within the EEOC s 300 day period. Within 10 days of filing the complaint with the THRC, it will send notice to the employer of the complaint s filing. Furthermore, the employer receives the actual complaint completed by the employee, though the witness list is not included. Like the EEOC, the THRC gives the parties the opportunity to mediate before launching its investigation, and if an agreement is reached, the charges are closed. If not, the investigation continues. While the EEOC issues a Right to Sue that is required before the complainant can file a private lawsuit in federal court, the THRC does not require such, and a private lawsuit may be filed in state court at any time. If this occurs, THRC ceases its investigation and closes the case. While most employment law covered by the THRC is very similar to the laws detailed above, an example of variation is that the Tennessee Human Rights Act ( THRA ) features a policy for maternity leave that differs from the FMLA. While the FMLA allows for up to twelve workweeks (approximately three months) of unpaid, jobprotected leave within twelve months of an employee becoming responsible for the care of a child through birth, adoption, or foster care, the THRA is slightly different. It allows employees up to four months of protected leave, which the employer has the 9

11 discretion to make paid or unpaid, for adoption, pregnancy, childbirth, and nursing. Another variation under the THRA/THRC is the lack of an accommodation requirement or obligation under the Tennessee Disability Act. Under the ADA, employers must provide a reasonable accommodation, not so under the TDA. As for damages, T.C.A (b) states that courts may award to the plaintiff actual damages sustained by such plaintiff, together with the costs of the lawsuit, including a reasonable fee for the plaintiff s attorney of record.... Tenn. Code Ann (b) (2011). The THRA appears to have been purposefully written to include governmental agencies as employers from which employees could receive damages, and the Government Tort Liability Act cap on damages does not govern the THRA. Punitive damages are permitted under the THRA, but exclusively in cases that involve discriminatory housing practices or malicious harassment. Carver v. Citizen Utilities, Co., 954 S.W.2d 34 (Tenn. 1997) (citing Tenn. Code Ann (c), , and ). Caps on compensatory damages in THRA claims are similar to those in 42 U.S.C. 1981a(b)(1). The cap is $25,000 for employers with eight to fourteen employees, $50,000 for fifteen to one-hundred employees, $100,000 for 101 to 200 employees, $200,000 for 201 to 500 employees, and $300,000 for more than 500 employees. Tenn. Code Ann (2016). These monetary totals do not include frontpay, backpay, or equitable relief. B. Tennessee Public Protection Act ( TPPA ) The Tennessee Public Protection Act, also known as the Tennessee Whistleblower Act, protects employees from being discharged in retaliation solely for reporting or refusing to participate in illegal activities, meaning activities that are in violation of the criminal or civil code of [Tennessee] or the United States or any 10

12 regulation intended to protect the public health, safety or welfare. Tenn. Code Ann (a)(3) (2014). In essence, the TPPA encourages employees to report and not take part in illegal or unethical conduct without fear of retaliatory discharge. A claim under the TPPA must include four clearly stated elements: (1) the plaintiff was an employee of the defendant; (2) the plaintiff refused to participate in or remain silent about illegal activity; (3) the defendant employer discharged or terminated the plaintiff s employment; and the defendant terminated the plaintiff s employment solely for the plaintiff s refusal to participate in or remain silent about the illegal activity. Williams v. City of Burns, 465 S.W.3d 96, 111 (Tenn. 2015) (citing Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 26 (Tenn. 2011)) (finding that a plaintiff officer who was discharged by his police chief for reporting to the city mayor that the police chief pressured the plaintiff officer into illegal traffic ticket fixing was discharged solely in retaliation for conduct protected under the [TPPA]. ). Employees are not limited to filing TPPA claims against private employers. Employers who may face TPPA claims include [t]he state or any municipality, county, department, board, commission, agency, instrumentality, political subdivision or any other entity of the state, as well as [t]he federal government as to an employee who receives compensation from the federal government for services performed for the federal government, notwithstanding that the person is not a full-time federal employee.... Tenn. Code Ann (a)(2). The burden is on the plaintiff to establish a prima facie case, and if satisfied, the defendant has the burden to prove that the plaintiff was discharged for at least one legitimate, nondiscriminatory reason. Tenn. Code Ann (f). Under the TPPA, damages are limited to those provided for in , which does not provide for punitive damages. The only difference is that employers 11

13 with less than eight employees may face TPPA claims, and the cap is $25,000. Again, these monetary totals do not include frontpay, backpay, or equitable relief. Id. Prevailing plaintiffs are also entitled to reasonable attorney s fees. Tenn. Code Ann (d)(2). C. Tennessee Public Employee Political Freedom Act ( PEPFA ) The Tennessee Public Employee Political Freedom Act is a short act which states that [i]t is unlawful for any public employer to discipline, threaten to discipline or otherwise discriminate against an employee because such employee exercised that employee s right to communicate with an elected public official. Tenn. Code Ann (a). Employees who are protected by the act consist of any person providing services to the State of Tennessee, state agencies, counties, municipalities, or subdivisions of such governmental bodies in Tennessee for which compensation is paid. Tenn. Code Ann (b). The plaintiff bears the burden of showing that the discrimination that he or she faced from defendant was a product of communication with an elected official. Todd v. Shelby Cty., 407 S.W.3d 212, 227 (Tenn. Ct. App. 2012) (finding that the plaintiff s communication with an elected official was insufficient to make out a prima facie case because plaintiff did not demonstrate the causal connection between the communication with an elected public official and plaintiff s termination of employment ). Furthermore, this communication must be a substantial or motivating factor in bringing about the discrimination that the plaintiff faced. Gooch v. City of Pulaski, No. M COA-R3CV, 2007 WL , at *6 (Tenn. Ct. App. Mar. 30, 2007) (citing Anderson v. Standard Register Co., 857 S.W.2d 555, (Tenn. 1993)) (determining that the PEPFA claim failed because the plaintiff provided no proof 12

14 that the individual who discharged plaintiff knew of plaintiff s communications with elected public officials). However, Tenn. Code Ann clarifies that the PEPFA does not prohibit an employer from correcting or reprimanding an employee for making untrue allegations concerning any job-related matter to an elected public official. Plaintiffs with PEPFA claims are entitled to treble damages plus reasonable attorney fees. Tenn. Code Ann (b). There are not many PEPFA cases in general, and neither the statute nor any cases give an account of what the underlying damages before trebling include. Heriges v. Wilson Cty., No. 3:09-cv-0362, 2010 WL , at *9-11 (M.D. Tenn. Oct. 19, 2010) provides the most in-depth discussion of PEPFA damages, but the court only concluded that the treble damages were not punitive damages, the trebling of damages was mandated by the statute, no double recovery occurred when the plaintiff received both PEPFA and 1983 damages, and that the PEPFA damages of $175,000, trebled to $525,000, were appropriate. 13

15 III. PREVENTING CHARGES and/or LAWSUITS A. Good Hiring Practices 1. Use of Background Information. If a municipal employer utilizes background checks, it should ensure that they are used appropriately. In all cases, make sure that you are treating everyone equally. It is illegal to check the background of applicants and employees when that decision is based on a person's race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination. Except in rare circumstances, do not try to get an applicant's or employee's genetic information, which includes family medical history. Even if you receive such information, do not use it to make an employment decision. A prospective employee should not be asked any medical questions before a conditional job offer has been made. If a person has already started the job, do not ask medical questions unless objective evidence exists that the employee is unable to do the job or poses a safety risk due to a medical condition. Any background information you receive from any source must not be used to discriminate in violation of federal law. This means that you must: Apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, if you don't reject applicants of one race or ethnicity with certain financial histories or criminal records, you cannot reject 14

16 applicants of other races or ethnicities because they have the same or similar financial histories or criminal records. Even a neutral screening policy may have a disproportionate impact on a certain protected class. Employers must be careful not to exclude an employee on the basis of a conviction, financial history, etc. that may be more common to a particular race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, an employer should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals in a protected class and does not accurately predict who will be a responsible, reliable, or safe employee. Such policies are considered to have a disparate impact and are not "job related and consistent with business necessity. You must be prepared to make exceptions for problems revealed during a background check that were caused by a disability. For example, if you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate his or her ability to do the job, despite the negative background information, unless doing so would cause significant financial or operational difficulty. If any employment decision is based upon a credit report or other consumer report, the employer must comply with the Fair Credit Reporting Act. "Ban the Box" refers to legislation passed in several states that prohibits government employers from inquiring about the criminal histories of job applicants. In Tennessee, ban the box applies only to certain state employees; political subdivisions remain exempt. 15

17 2. Legally Compliant Applications It is important employers ensure that their job applications comply with the law. Employers must also be certain that the person conducting prospective employee interviews is experienced in the do s and don t s of interviewing. B. Good Employer-Employee Relations 1. Comprehensive Policies Be certain that city policy and procedure manuals are updated regularly, and that employees sign a new acknowledgment for their file with every update. Ensure that all policies are applied consistently. 2. Training for Supervisors and Managers All supervisory and managerial employees should receive regular training, annually if possible, regarding Title VII and the THRA, at a minimum. The employer should maintain attendance records and be sure to conduct follow-up sessions for those employees who are absent. 3. Open Door Policy /Access to HR Having an open door policy that provides employees with easy access to the Human Resources Department can improve employee relations and reduce potential complaints. Employers should always provide alternative outlets for employees to report concerns / complaints, however. 4. Addressing Internal or HR Complaints Promptly and Thoroughly An employer must investigate every complaint, with no exceptions. Investigations should be commenced as soon as possible after a complaint is made, even if you believe the complaint is meritless. Do not rush the investigation. Spend as much 16

18 time as necessary to get to the bottom of things and resolve the issues. Remember, your investigation will provide your attorneys with the tools we need to defend you when necessary. a. Interviews One of the first steps in any investigation is to identify and interview key witnesses. This will usually include the Complainant, the alleged offender, and often a supervisor, decision-maker, and one or more co-workers. When conducting interviews, begin with open-ended questions, narrowing the issues as you go. Be sure to be mindful of privacy issues, and explain to each interviewee that there is limited confidentiality and that City policy prohibits retaliation for cooperating with an investigation. It is important to be cautious in what you say to the interviewees. Be especially careful what information you reveal about the Complainant. Use the process to identify other witnesses and documents that might assist in the investigation, and compare the information witnesses provide to the available documentary evidence. Finally, keep your interview notes in a separate folder to protect their integrity and prevent them from being misplaced or getting into the wrong hands. b. Documents May need to consult personnel files of Complainant and others Policies / procedures that justify discipline Any other documents s Memos Handwritten notes 17

19 IV. RESPONDING TO CHARGES AND/OR LAWSUITS A. Upon Receipt of EEOC Charge or Lawsuit 1. Notify EPLI Carrier Remember to always notify your EPLI carrier immediately when a Charge is received, so that the City's coverage is not jeopardized. 2. Respond to Open Records Act Requests Sometimes an employee serves an Open Records request with his/her Charge. You should respond to the request as you normally would, within the required time frame and utilize the Office of Open Records Counsel (615) Initiate Litigation Hold In many cases, receipt of a Charge is the first notice of litigation. It is important that a litigation hold be put into place as soon as the City has reason to believe that litigation is likely. As noted earlier, sometimes an EEOC Charge is the first indication of potential litigation. However, that is not always the case. The duty to institute a litigation hold can arise from lesser events, such as a statement by an employee or communication from an employee's attorney. It is critical that a litigation hold be instituted immediately upon any notice of potential future litigation, so you should consult with counsel anytime a question arises. Court rules now provide strict penalties for failing to maintain the integrity of relevant information. These include, most notably, an adverse instruction to the jury permitting them to infer that the City intentionally destroyed evidence favorable to the employee. 18

20 4. Technical and Procedural Matters When a Charge or Complaint is received, we examine it carefully, and you should too. While this may seem obvious, areas of key disputes are often overlooked. First, we need to determine whether the Charge or Complaint correctly identifies the employer. This is important for a few reasons. Correct identification is also important to ensure insurance coverage for the proper employing entity. If the Charge does not correctly identify the employer, advise your attorney so that it can be prominently noted in the Charge response. We will also be examining the Charge to determine whether it is timely. Generally speaking, EEOC charges must be filed within 180 days of the last discriminatory act. However, because Tennessee has a state agency that also prohibits discrimination on the same basis as Title VII (the Tennessee Human Relations Commission), this period is extended to 300 days. Once the Charge is filed our time to respond is usually quite short, another reason why it is important to notify your EPLI carrier and provide us with the Charge as quickly as possible. The EEOC will sometimes, but not always, grant a 2-week extension of time to respond. There is usually a separate, later deadline by which the City will need to decide whether to participate in EEOC mediation. B. Responding to an EEOC Charge Provides Opportunities While receiving an EEOC Charge can be frustrating, the process provides some opportunities for the City. First, the City's Position Statement and Response to Document Request gives us an opportunity to introduce the City in a way that makes it more than just a faceless entity to the investigator. We have the opportunity, through the Position Statement, to introduce the individuals who work there, highlight their 19

21 qualifications and strengths, and present the City's policies and practices. We routinely discuss the City's culture of compliance and emphasize the efforts to which the City has gone to be fair, comply with the law, and apply its policies consistently. We have the opportunity, through the Position Statement, to show the EEOC why the Charging Party's allegations lack merit, and why the Charge should be dismissed. It also provides the opportunity to build credibility with the EEOC investigators, some of whom may be assigned to handle subsequent charges against the City. The process also gives the City an opportunity to assist counsel in conducting a thorough investigation into the Charge allegations. No one knows your City, its policies and practices, and the people who work there every day, better than you. Your assistance and institutional knowledge is invaluable in this process. A thorough, wellwritten Position Statement lays the foundation for the successful defense of a potential lawsuit that may arise later. C. Should You Mediate? In every case, the City will have the opportunity to participate in mediation with an EEOC investigator. There are pros and cons to participating in the process. The pros include free discovery and the ability to assess the Charging Party and his/her attorney early, as well as to determine the Charging Party's level of seriousness and ideas about the value of his/her case. Mediation also gives your attorney some additional time to respond to the Charge on the City's behalf, which is beneficial if there are a lot of documents to gather and/or more than a couple of individuals to interview. Additionally, some cases simply warrant early resolution. The EEOC mediation process provides a way to accomplish that with minimal cost. Finally, the EEOC mediator just 20

22 may be able to help show the Charging Party why the case against the City is not as strong as he/she thinks. Cons of mediation include the fact that many EEOC mediators are underwhelming in their commitment to critically analyze the case, and work to achieve resolution. Further, some use the process to try to force a settlement with which the parties are not comfortable. Finally, some cities believe that agreeing to mediation gives a perception of weakness. We encourage our clients not to reject mediation out of hand for this reason. Even if your case does not resolve at that level, the benefits almost always outweigh the drawbacks. D. Potential EEOC Outcomes Any EEOC Charge can result in one of three outcomes. The most preferable outcome is a "no cause" finding, where the agency concludes that the Charging Party cannot establish probable cause to believe that discrimination occurred. In this case, the agency will issue a "Right to Sue" letter, after which the Charging Party has 90 days to file suit in federal court. The Charging Party has a duty under the law to exhaust all of his/her administrative remedies, and failure to do so is an affirmative defense to a lawsuit. Therefore we will monitor the issuance of the Right to Sue letter and the time within which the Charging Party files suit. The process can also result in a "cause" finding, meaning the agency determines there is probable cause to believe discrimination did occur. In this case, the agency will usually attempt to conciliate the matter. Otherwise, the agency will issue a Right to Sue letter, and the 90 day period to sue will begin to run. 21

23 The third potential outcome is, if the agency does not complete its investigation within 180 days after the Charge is filed, the Charging Party may request a Right to Sue letter and proceed with his/her lawsuit in federal court. E. Why Should You Take this Process Seriously? It can be easy to get frustrated with the EEOC process. Some employers doubt the importance of taking the process seriously at all. After all, the EEOC cannot impose liability or penalties upon the employer. Remember, however, that a "no cause" finding has benefits, even though a Right to Sue letter will still be issued. Further, failure to take the process seriously, sloppiness and apathy will increase the employer's fees and potentially provide damaging evidence against the employer in a future lawsuit. Benefits of a "no cause" finding can be significant. Statistics show that approximately 50% of employees who lose at the EEOC do not pursue litigation. Such a finding also makes a case less appealing to an attorney whom the employee may solicit to file a lawsuit. Preparing a comprehensive response with appropriate statements and documents requires a greater investment of time from the agency, which is already overworked and understaffed. Natural delays inherent in the process can sometimes reduce the employee's enthusiasm for their case and their desire to continue pursuing it, especially if they have moved on to another position and/or become otherwise engaged in other life events. F. Other Issues to Keep in Mind 1. Remember that you are stuck with your Position Statement Your Position Statement and documents can be obtained by the Charging Party, or anyone else, through a FOIA request. Also, the EEOC is now affirmatively sharing 22

24 these documents with the Charging Party and his/her attorney, sometimes even permitting them to submit a written response (which is usually not shared with you or us). Most importantly, your Position Statement could be admitted at trial, or to defeat summary judgment, in certain cases. The utmost of care should therefore be used when responding to an EEOC charge or otherwise communicating with the agency. 2. EEOC sometimes requests additional information In our experience, the EEOC will request additional information up to half the time. The agency will make these requests through your attorneys, but in the event you receive a request directly, you should seek guidance from your attorney. 3. On-Site Investigations It is increasingly common for the EEOC to request an on-site investigation, which may include a request to interview certain employees, the ability to view additional documents, and sometimes a request to inspect a particular portion of the employer's worksite. The agency will almost always provide advance notice of their intended visit and will usually allow you to coordinate the visit with your attorney. Your attorney should always attend any such supplemental interviews or on-site investigations. 23