EEOC and requests for more information
Posted: 07 July 2010 11:46 AM   [ Ignore ]
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I had two EEOC charges in which the position statements were mailed over a year ago in one instance and 6 months ago in the second. These are pretty clear cut cases, or so I thought.

In the last week, I received requests for more information on both cases. It is also interesting that the requests were made by someone other than the original person at the EEOC we sent them to. The data the EEOC was asking for was voluminous to say the least. 

I am also finding that the EEOC is communicating via e-mail which I have not seen in the past. Not that this is a big deal, it is just that I find it curious.  On Friday, I received an e-mail from one of the investigators stating, “After reviewing the information submitted, it has become clear that I will need to conduct a site visit in connection with this complaint. I’ll contact you next week after the holiday. Have a great holiday weekend!”

This is a clear cut termination for cause. Besides the fact that my holiday weekend was ruined, I am wondering of others are experiencing such actions from the EEOC and what, if anything, this means. 

Thanks in advance for your help.

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Bob McKenzie
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Posted: 07 July 2010 12:22 PM   [ Ignore ]   [ # 1 ]
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I’ve seen this happen after an attorney gets involved on behalf of the complainant, which is not necessarily good news.  Why not ask the investigators to see what’s going on?

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Patrick Della Valle
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Posted: 07 July 2010 12:29 PM   [ Ignore ]   [ # 2 ]
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Throughout the EEO process—including the hearing stage—the EEOC is required to thoroughly investigate all claims.  They do use email now, as do some of the EEO Administrative Judges.  If you need more time to respond to their information requests, all you have to do is ask.  In addition, information submitted after the deadline, will be added to the file.

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Posted: 07 July 2010 12:33 PM   [ Ignore ]   [ # 3 ]
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I use counsel to respond to all charges and they’ve advised me to ignore those requests which I’m happy to do smile  I do believe they usually have some sort of direct communication with the investigator which I would recommend if you don’t have counsel.

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Posted: 07 July 2010 12:33 PM   [ Ignore ]   [ # 4 ]
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The EEOC, in my experience with them, will not relent. Recently I prepared a response to a Notice of Charge of Discrimination, on behalf of a client, that was straight-forward. When the request for additional documents arrived, I spoke with the investigator to inform her that the client objected to the volume of requested data and cited that the data was not needed to resolve the case. I also argued that the time to make the copies would be a burden. The investigator offered to send a two-person team to the work place to copy all of the documents. Given that the client did not want EEOC people on-site with access to personnel files, we complied with the request.

You may be able to negotiate with the investigator; but, don’t be surprised if he/she, too, tells you to produce the documents or they’ll send their own people to the work place to make the copies.

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Posted: 07 July 2010 12:34 PM   [ Ignore ]   [ # 5 ]
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The circumstances you describe are not unusual nowadays.  The EEOC (and other federal agencies) have ramped up their enforcement and investigative efforts over the last couple of years.  It is not unusual for a charge to languish for a while and then become active again; it is not unusual to have 2 or more different investigators on a case (due to reassignment or turnover); it is not unusual to get two or more supplemental requests for information or documentation from the EEOC long after the original position statement has been filed.  The scenario you describe has now, in many cases, simply become part of the process. 

I would not assume the EEOC’s new aggressive posture means that the charging party has obtained an attorney.  If anything, it could mean the opposite—that the agency is not getting very much information or assistance from the individual and must pump the company for all relevant information.  Typically, if a charging party is represented by counsel, the attorney is anxious to either mediate the case or have the EEOC quickly conclude its investigation so that a lawsuit can be filed.

Kevin McCoy
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Posted: 07 July 2010 12:37 PM   [ Ignore ]   [ # 6 ]
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I am not sure what jurisdiction you are in, but I’ve handled EEOC Complaints in Colorado, Minnesota, California, Kentucky and New York.  In all of these jurisdictions, I have as of late been dealing with the EEOC via email, not snail mail.  Indeed, it has been that way for at least 5 years.  I would not read too much into that.  With respect to the lateness of the reply, I suspect that your original representative may have moved on or been reassigned.  I do know that virtually all jurisdictions are under water with complaints as everyone is looking for something or someone to blame and are hopeful for settlement, given the economy.  I have honestly had 100% success in all my responses to the EEOC—but I do believe in preparing informative and detailed responsive packages.  Indeed, I often send more than what is needed and I organize it so that the file is easily reviewed.  I suggest you respond by producing not only what they want or are asking for (unless it is privileged) and be sure to organize it and draft a cover memo or letter outlining what it is that you are producing and explain how or why it is demonstrating your company’s compliance.  ~ V

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Posted: 07 July 2010 12:48 PM   [ Ignore ]   [ # 7 ]
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First of all this is NOT unusual - relax. The EEOC uses a templated investigation model called the “MODELS OF PROOF”, it is based on trying to determine if there is a prima facie showing to establish culpability. Primarly, the models are taken from jury instructions - so, when I have received allegations, I formulate my response on the models of proof. It makes it easier for them and gives you guidance on how to answer their questions. Requests for addtional information are generally caused by NOT answering properly and insufficient managerial basis….

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Posted: 07 July 2010 01:57 PM   [ Ignore ]   [ # 8 ]
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I agree with all of the preceding comments and observations.  In my experience, beginning a dialog and establishing a good rapport with the currently-assigned investigator goes a long way toward the ability to narrow the scope of the information requested to one that is reasonable and relevant, and to finding out what additional information you can give them to persuade the EEOC that there was no violation.

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Posted: 07 July 2010 03:56 PM   [ Ignore ]   [ # 9 ]
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I would not be too concerned about the way that the EEOC is handling this complaint. They try to intimidate you by bogging you down with onerous requests for documents regardless of the merits of the case. They also try to get you to agree to some consent degree. Hang in there.

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Posted: 07 July 2010 05:36 PM   [ Ignore ]   [ # 10 ]
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Thank you for this responses. They are very much appreciated.

In the past we just got a letter with the box checked that they could not find discrimination and that was the end of it. Except of course for the guy who filed a federal lawsuit pro se. That was actually pretty funny.

The problem is that both of these cases are nuisance complaints, so I was just wondering if these requests are a relatively new phenomenon with the EEOC. It appears that is may be. I also had a labor attorney tell me that with all the new people and contractors the EEOC is hiring, there may be a second level of approval needed. He is getting the same type of requests.

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Posted: 08 July 2010 11:17 AM   [ Ignore ]   [ # 11 ]
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I have seen this happen a good deal in my practice as well.  I believe this is a function of the EEOC being shorthanded and, consequently, on average, the EEOC takes from 10-14 months to respond to a position statement.  Don’t ignore an RFI because the EEOC has the power to issue subpoenas.  Sometimes, these RFI requests are issued at the behest of a supervisor who is trying to move some of their caseload.  Also, receipt of an RFI does not mean that a “for cause” finding is imminent.  It may simply mean that they are tying up loose ends before closing the file.

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Posted: 09 July 2010 09:30 PM   [ Ignore ]   [ # 12 ]
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It may depend on the type of claim.  The EEOC is stepping up its investigations into ADA claims and claims of discrimination based on criminal convictions. It won’t matter to them if the complaint is a nuisance complaint if it falls into one of these categories.

Don’t roll over on all of the requests.  I have been able to successfully object to providing some of the information requested based on relevancy, undue burden, overly broad, etc.

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