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Tammy Woolley: Six ways an employer can win at the EEOC
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Tammy Woolley: Six ways an employer can win at the EEOC

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Tammy Woolley

Tammy Woolley

A few weeks ago, I wrote about the mistakes employers make when dealing with the Equal Employment Opportunity Commission. Today I’ll be more positive, and give you tips for winning your discrimination charge or EEOC lawsuit.

No. 1: Stay positive. You can win an EEOC charge, and even an EEOC lawsuit – especially if the agency seems to be litigating only because you happen to be on the wrong end of one of its “hot” causes.

No. 2: Explain it all, like to a 2-year-old. When the EEOC gets a charge, all it has is what the charging party said. Not only does the investigator not know your side of the story, but he or she may not know anything about what you do or your industry. And that background may explain why your actions were legitimate and non-discriminatory.In all of your dealings with the EEOC be sure that you fully and in plain language explain all the relevant background information.

No. 3: Tell the truth, and also the whole truth. Employers do this a lot, and it drives me crazy: They are terminating an employee for cause, but because they don’t want to hurt anyone’s feelings or are terrified of the possibility of a lawsuit, they tell the employee it is a “job elimination.” That story falls apart very quickly when the employer immediately replaces the employee whose job was “eliminated.”

Honesty really is the best policy. It’s a cliché for a reason.

No. 4: A “request for information” from the EEOC does not necessarily mean you are about to lose. Often, when the EEOC asks an employer for more information, it is ready to throw out the charge and just needs to dot a few more i’s and cross a few more t’s before it can do so.

No. 5: Generally, you can be pleasant with the EEOC. Some investigators may require a little “tough love,” but they are in the minority. Most will be much easier to deal with if you are courteous and pleasant with them, even if you disagree with their position.

No. 6: Get a lawyer. If your company doesn’t have an in-house employment lawyer who can advise you, get outside counsel, even if the charge seems trivial. You don’t want to blow it and have the agency out for your blood.

Some examples of employer mistakes that can turn little charges into big disasters: Providing too much information, which gives the EEOC an excuse to go “fishing”; not providing enough information, which makes you look evasive; presenting “facts” that turn out to be wrong; and calling a termination for cause a “job elimination.”

This is purely anecdotal and unscientific, but I swear that the EEOC investigators behave better when the employer is represented by counsel. So, even if you don’t need a lawyer for any other reason, you may want a lawyer for that reason.

Tammy C. Woolley is Senior Counsel working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, Ala., and can be contacted at twoolley@constangy.com or 205-226-5468.

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