Once the EEOC or the state agency receives a complaint of harassment, the agency conducts an investigation into the complaint. As part of that investigation, the agency allows the employer to respond to the allegations of the complaint in the form of a position statement. The following are some guidelines for attorneys and human resources personnel to follow when responding to an agency complaint and formulating a position statement:
- Read the Complaint or Charge Carefully:
- Check the date of the alleged harassment with the date the complaint/charge was filed.
- Determine if the employer is covered by the statute.
- Check for fatal flaws in the charge/complaint.
- Think Through Your Response and What You Need:
- Decide which persons need to be interviewed.
- Decide what documents would be helpful.
- Decide what data would be helpful.
- Obtain Information:
- Interview managers or supervisors involved in the decision.
- Interview employees whenever appropriate.
- Evaluate the Charge or Complaint:
- Does the company have a harassment policy in place that is distributed to all employees?
- Can the company establish that the complainant did not take advantage of company procedures for reporting harassment?
- Consider Settlement:
- Both federal and state agencies welcome pre-investigation settlement.
- Consider having a separate settlement agreement in addition to standard agency settlement agreement.
- Prepare Your Position Statement:
- Prepare a thorough explanation of what happened.
- Know the Law:
- Know what the standards are for establishing harassment.
- Did the company have knowledge of the harassment?
- What are the company's defenses?
- What will the Agency look for?
- Is there written documentation regarding the incident?
- What relevant company policies are applicable?
- Did the company have a harassment policy, and was it followed?
- Consider Obtaining Extensions of Time:
- Be aware that agencies frequently will grant additional time for an employer to respond to the charge/complaint.
- The EEOC Investigation:
- The EEOC may dismiss the charges once it receives the company's response.
- The next step may be a request for additional information or for interviews.
- The EEOC will dismiss the charge if there is no evidence of harassment.
- If the EEOC makes a cause determination, it will invite the employer to engage in settlement discussions prior to any litigation.