If you are in business long enough, and you are successful, chances are you are going to face at least one EEOC Complaint, because success attracts lawsuits. Having an experienced employment lawyer, versus not, can either make it a slightly unpleasant experience, or a very expensive, extremely unpleasant, experience. The problem is that some employers do not hire an employment lawyer to answer their EEOC Complaints, and then act surprised, when they have multiplied their problems.
There are two phases of an EEOC Complaint. First, the employee complains to the EEOC, the EEOC will make you aware of the Complaint and give you a chance to respond. They will then, possibly, invite you to a Conciliation, which is an EEOC lead mediation, if the Conciliation fails, or 180 days pass, the EEOC will give the complaining employee permission to file a lawsuit against the employer. During those 180 days, or longer, if you are not represented well, or there is a systemic problem at your workplace, you can face an in-depth investigation from the EEOC. This is one reason it is key to have a strong response, written by an experienced employment attorney.
The dream that a lot of employment lawyers sell, is to claim that there is a way to stop the Complaint from turning into a lawsuit, because the EEOC will not give permission to sue. The EEOC will give permission to the employee to sue, no matter how outrageous, stupid, and false, the employee’s claim is.
The EEOC is a clearinghouse and gives almost everyone permission to sue. The likelihood it will not give someone permission to sue, is beyond remote, and almost non-existent. The best way to tell if you have the wrong lawyer, is if the lawyer tells you the EEOC may not give permission to sue, run fast, because they have no idea what they are talking about. As you can see from the chart, the EEOC always gives the right to sue letter, whether their investigation finds something or not.
Starting with an experienced employment attorney, at the earliest possible stage, as soon as the EEOC informs you of the Complaint, is the smartest thing you can do.
You need an attorney from day one, because what you are dealing with is something that is likely to end in a Federal Courtroom, unless you settle immediately. If you do settle immediately, you need to make sure to settle for the right amount. Only an experienced employment attorney, like myself, knows what the right amount is in these difficult situations, to make it a smart business decision. If you are not going to settle, you need to be prepared for a Federal Court Case, which not every lawyer can handle, you need someone who has handled their share of Federal Cases, like the hundreds of Federal Cases I have handled.
Federal and state courts are very different, and the EEOC is the first step towards Federal Court, so you need to start with experienced federal employment representation, at the EEOC stage, when you are first notified of the Complaint. How the Complaint is handled, at the EEOC stage, can lead to more complaints, an in-depth investigation of your company, and/or the EEOC taking the place of your employee in the lawsuit, meaning that the Federal Government can sue you, rather than an employer, if you are not careful.
Avoiding an extended investigation by the EEOC is essential. EEOC investigations can be very disruptive to your business, and are rarely confidential for long, affecting your good name in the community. A strong response to the Complaint, from an experienced Federal Employment Attorney, in many cases, can stop an in-depth investigation by the EEOC. Hence, it is essential that you call an employment lawyer, like myself, immediately upon receiving notice from the EEOC, that there is a Complaint.
You should not attempt to answer the EEOC on your own, these are nuanced fields of law, and you can end up burying yourself in problems, over one errant sentence.
Furthermore, having a lawyer write a strong response will significantly help in a process which you should participate in, EEOC Conciliation. EEOC Conciliation is a process by which you mediate the dispute with the EEOC. It takes an experienced employment lawyer to know how much you should be settling for at Conciliation, or if you should refuse to settle. Participating is key to learning what you are up against.
If you want to fight, rather than settle, you need a strong response, even more, because you want to discourage the employee, by making it clear that this will not be a cakewalk, and there is a fight ahead.
Plaintiff’s lawyers take cases on contingency, so it is possible to discourage them. While the cost of filing the case, after the EEOC gives permission, is marginal, the willingness of an attorney to chase a lost cause, at their own expense, is questionable.
If your goal is to win at trial, you need an employment lawyer, like myself, with Federal trial experience. You need someone who has handled hundreds of Federal Lawsuits, like myself, in order to have the best chance to win.
If the EEOC notifies you that a complaint has been filed, call me right away, so I can help you with a strong response.
