by Judith Langevin, Esq., Gray Plant Mooty, Minneapolis
The federal government, most states and some municipalities all have agencies charged with enforcing employment laws. Employers are most likely to have contact with agencies that enforce anti-discrimination laws, usually as the result of a charge of discrimination filed by an employee or former employee.
How you deal with those enforcement agencies when discrimination charges surface matters a lot.
First, remember that this isn’t war. It’s never fun to have to respond to a discrimination claim, and it’s important to take them seriously. In most cases, however, the filing of a charge doesn’t mean the agency has formed an opinion about the validity of the claims. It also doesn’t mean a disastrous fight is on the horizon.
Enforcement agencies are neutral investigative bodies, at least at the beginning of the charge process. Most anti-discrimination statutes require enforcement agencies to accept charges regardless of their apparent merit. In fact, they dismiss far more charges than they find valid or prosecute beyond the initial investigation stage.
Furthermore, agency staff aren’t encouraged to see discrimination that isn’t there. They are doing a job mandated by law, and employees or former employees filing the charges are exercising a right established by the same laws.
Overreacting to a charge can create more work and stress than necessary. Consider several factors when you have to respond to a discrimination charge.
Education helps
Find out everything you can about the agency’s process. Seek general information first, instead of asking what will happen with your particular charge. Most agencies have websites; some have information officers who can help. If you ask nicely and respectfully, you can usually find out a lot about how long charge processing takes, who makes decisions and which deadlines are critical.
The other side of the coin is important, too. The agency doesn’t know your organization. If some agency information request or process doesn’t fit your circumstances, explain why and offer alternative ways for the agency to get the information it needs.
Skip the formalities
The investigation of a discrimination charge by an enforcement agency is a process with legal consequences, but it’s not a formal legal process. There’s usually no need for legal briefs, case citations or detailed legal analysis.
Enforcement agencies gather facts and information. They seldom engage in legal analysis at the investigation stage, and can be irritated by employers and attorneys that inundate them with legal authority. Agency staff are also very familiar with the standards they are supposed to apply (like whether there is probable cause to believe the charging party’s allegations) and don’t appreciate being lectured by either side about how they should do their jobs.
Be nice
Agency personnel deal with a lot of unhappy people and have large caseloads and few resources. Charging parties and respondents alike chafe at the investigation process, distrust the agency’s motivations and resent the agency’s insistence on evidence to support their positions.
Resist the temptation to take your frustration out on the agency personnel you deal with. Remain businesslike. Respect the law and the work of the agency. You’re much more likely to get information and build a relationship of trust if you do.
Cough it up
Enforcement agencies have broad investigative powers and aren’t limited by the evidentiary standards of the courtroom.
They are entitled to seek a lot of information. Most of the time they have a reason for asking, even if it’s not obvious. If an information request seems too broad, politely ask why.
It’s also fine to push back a little and to offer alternatives. (“Since the charge claims that the division director discriminates in hiring, how about we send you information about all the hires in that division, instead of the whole company?”)
Ultimately, though, a court is likely to allow the agency access to pretty much anything it wants, so think it through before you refuse to cooperate or spend a lot of time complaining to the agency’s management about the scope of the investigation.
Keep the big picture in mind
A charge of discrimination may or may not lead to legal consequences. The agency process can lead to court action, but isn’t the same as court action. Neither a positive nor a negative finding by an agency necessarily determines the ultimate outcome.
Many charges for which agencies find probable cause wind up failing in court. Some charges that agencies dismiss wind up being successfully litigated.
Pay attention, respond carefully and always tell the truth. But don’t rely on an enforcement agency to validate or correct your organization’s employment practices. That’s your job.
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Judith Langevin is a principal in Gray Plant Mooty’s employment law practice. Contact her at (612) 632-3366 or
judithbevis.langevin@gpmlaw.com.
