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Responding to an EEOC Discrimination Charge: Hidden Risks

By Richard S. Cohen, Jackson Lewis, P.C.
Discrimination lawsuits can be filed by a rejected applicant, current or former employee or a governmental agency charged with the responsibility of handling administrative complaints of discrimination (“charges”). Although charges in Arizona are filed simultaneously with the Arizona Civil Rights Division of the Attorney General’s Office and the United States Equal Employment Opportunity Commission (“EEOC”), almost all of the charges are investigated by the federal agency. With limited exceptions, a private party cannot file a discrimination lawsuit without first having filed a charge.

For years, employers understandably have analyzed only the specific allegations made by the individual who filed the charge (“charging party”). Although any lawsuit filed by the charging party must be limited in scope to allegations that are “like or related” to those in his charge, that limitation does not apply to lawsuits filed by the government. Instead, the courts have repeatedly held that the EEOC can sue on any allegations that reasonably grew out of the agency’s investigation of the charge and were then investigated, as long as the EEOC found “reasonable cause” to believe that discrimination had occurred as to those issues.

During the past several years, the EEOC has become increasingly aggressive in its efforts to expand the scope of the allegations in the individual party’s initial charge. To the extent possible, the EEOC will attempt to discover a policy or practice that it believes violates the law. At times, the policy or practice may be directly related to the employment action about which the charging party complained. However, based on the principle that the EEOC can investigate anything that reasonably came to its attention while it was investigating allegations in the charge, the EEOC’s ultimate findings of discrimination may have absolutely nothing to do with the allegations that were in the charge. For example, if the employer, in response to a charge of race discrimination, provides the EEOC with its entire employee handbook, and the EEOC discovers a policy in the handbook that it concludes is discriminatory, it can expand its investigation to cover that policy. As an example, the EEOC, starting with an investigation into allegations of racial harassment, can go in an entirely different direction because it believes the employer’s leave policy violates the Americans with Disabilities Act.

While the EEOC, pursuant to its “Systemic Initiative,” has announced that its highest priority will be to investigate and file lawsuits challenging discriminatory policies or practices, as a result of the agency’s overall increased aggressiveness, we have seen numerous instances in which the EEOC, purportedly investigating a single claim of harassment, found cause to believe that several individuals other than the charging party were harassed. With that determination in hand, the EEOC then demanded monetary payments for the additional “victims” they found during their investigation – individuals who had never filed a charge or even an internal complaint with the employer.

The Bottom Line: Because of the complexities of the discrimination laws and regulations, employers often have created problems for themselves when responding to narrow charges of discrimination. The risk and potential exposure of mistakes during an EEOC administrative investigation has increased dramatically, however, as the agency has become significantly more aggressive in its efforts to expand the scope of its investigations.

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All Arizona cities and towns obtaining their liability coverage from the AMRRP are eligible to use the Pool’s EEOC/ACRD Position Statement Program at no charge. The program provides Members with legal assistance in formulating an administrative response to discrimination allegations filed with the EEOC or ACRD. The specialized employment attorneys at the Jackson Lewis law firm assist AMRRP Members in effectively addressing discrimination charges at the administrative level where costly potential employment lawsuits can oftentimes be eliminated before they’re filed.

For further information on the AMRRP’s EEOC/ACRD Position Statement Program, contact Kevin Buchanan at 602-368-6654 (kbuchanan@berkleyrisk.com).

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