Your company just received a Notice of Charge of Discrimination from the Equal Employment Opportunity Commission (“EEOC”) or Texas Workforce Commission Civil Rights Division (“TWC”). The agency will ask for a position statement from the employer, which it will consider during its investigation. The next round of communications will be very important, especially if the employee decides to file suit after the investigation.
The EEOC and TWC dismiss the majority of charges, after which the employee has 90 days to file suit in state or federal court. In order to prevail, the employee will often need to show the company’s stated reasons for dismissal were a pretext for discrimination or retaliation. This is where a poorly-worded or incomplete response can be particularly dangerous.
Avoid creating evidence of Pretext
In Ameristar Airways, Inc. v. Administrative Review Bd., U.S. Dept. of Labor, for example, the employer (Ameristar Airways) terminated its director of operations for a variety of work-related offenses. In its original communications with the Texas Workforce Commission, Ameristar cited only two reasons for its termination decision. Once the employee filed suit, however, Ameristar came up with four new reasons for the decision. According to the Fifth Circuit, the shifting justifications for the decision tended to suggest the reasons were “a mere litigation figment” and, therefore, a pretext for discrimination. This was enough to keep the case from being dismissed before trial.
Ask for a flat fee.
As Ameristar demonstrates, you should consult with an attorney before you send the statement of position to the agency. Most businesses are reluctant to incur unnecessary legal fees, but our firm often agrees to perform this work as part of a flat fee or on a “capped” basis. This arrangement usually ends up being more reasonable for businesses with an eye on the bottom line.