Filing of The Complaint

Before an employee can file charges of discrimination (harassment or retaliation) against an employer they must first clear an important administrative hurdle; filing an administrative complaint with the appropriate state or federal agency. For claims alleging discrimination under federal law (e.g., Title VII of the Civil Rights Act of 1964 or Americans with Disabilities Act) the employee must file their complaint with the Equal Employment Opportunity Commission (EEOC). For claims alleging discriminatory conduct under state law (e.g., Fair Employment and Housing Act) the employee must file their claim with the California Department of Fair Employment and Housing (DFEH). Complaints at both agencies can be completed online.

The filing of the administrative complaint initiates the claims process which, at the federal level, mandates that the EEOC notify the employer about the complaint within 10 days. The notification letter contains important information about the claim(s) including a URL for accessing the charges and receiving important information about the claim(s).  At the state level, once a complaint is filed, the DFEH must notify the employer by serving a copy of the complaint on the employer within ten, but not more than sixty, days after the complaint is filed. Employers served with a complaint must respond within the timeframe outlined in the notice.

It is important to note that receipt of an administrative complaint from a state or federal agency does not constitute a finding of wrongdoing. It just means that the agency has decided to investigate to determine whether there is reasonable cause to believe a violation of law actually occurred. Both state and federal investigators will advise the employer if the matter is eligible for mediation. A decision to mediate or discuss settlement should not be undertaken without first seeking legal counsel.

Note: This article discusses administrative complaints filed with (and prosecuted by) a state or federal agency. It does not include information about responding to civil complaints alleging violations of anti-discrimination, harassment and retaliation laws.

Next week: What to expect during the investigation phase.

If your organization receives – or has received – an administrative complaint alleging discrimination, harassment or retaliation in violation of state or federal law(s) you should immediately seek legal counsel. Western Growers Members can take advantage of WG’s network of member law firms offering a WG member discount off their regular legal fees. For a list of participating law firms, call 877-942-4529.      

The filing of an administrative complaint alleging discrimination, under state or federal law, initiates the claims process. The receipt of a notification letter provides important information about the claim(s), instructions on how/when to respond and administrative next steps. 

During the pendency of an administrative investigation the employer and the charging party (the former or current employee) are each provided an opportunity to provide relevant information. The information submitted during the investigation will be evaluated by the agency’s assigned investigator who will ultimately provide a recommendation as to whether the agency feels there is reasonable cause to believe that unlawful discrimination (harassment or retaliation) has occurred.

Important to the employer’s defense is the submission of its Statement of Position (SOP). Information provided in the SOP allows the employer to provide factual details and to tell its side of the story. Drafting the SOP is critical to the employer’s defense and should not be undertaken without first seeking legal counsel.

Agency investigators have the authority to request the employer provide specific documents and information or allow it to interview various individuals with knowledge of the organization and/or the specific allegations.[i]  The investigators request for information may include submission of the organization’s handbook (or specific policies), personnel files for various individuals, or other relevant information (e.g., investigation notes, witness contact information). Employers should keep in mind that the agency may gather information through the subpoena process or by visiting the worksite.

If additional time is needed to gather documents or facts it is best to timely communicate with the investigator to secure an extension in advance of any pending deadlines.

Note: This article discusses administrative complaints filed with (and prosecuted by) a state or federal agency. It does not include information about responding to civil complaints alleging violations of anti-discrimination, harassment and retaliation laws.  

Next week: Completing the investigation.

If your organization receives – or has received – an administrative complaint alleging discrimination, harassment or retaliation in violation of state or federal law(s) you should immediately seek legal counsel. Western Growers Members can take advantage of WG’s network of member law firms offering a WG member discount off their regular legal fees. For a list of participating law firms, call 877-942-4529.     

The filing of an administrative complaint alleging discrimination, under state or federal law, initiates the claims process and triggers an administrative investigation. During the pendency of the investigation both the employer and the charging party (the former or current employee) are each provided an opportunity to provide relevant information. This information is presented to and evaluated by the administrative agency’s assigned investigator.

The investigation period allows both parties an opportunity to review and evaluate factual information in support of their position. One of two possible outcomes are communicated to the employer at the end of the investigation period: A Dismissal and Notice of Rights[i] – issued when the agency is unable to conclude whether there is “reasonable cause” to believe unlawful conduct occurred or a Letter of Determination – issued when the investigator determines there is “reasonable cause” to believe wrongful conduct has occurred.

Along the way, there are many opportunities to resolve charges – or potential charges – of discrimination, harassment or retaliation. Nothing in this article suggests or advocates a position for resolving an allegation that is clearly unsupported by factual evidence. Nonetheless, where factual evidence may support potential charges, successfully resolving the matter early may save time, money and effort. Below we outline three common types of resolution methods.

Settlement
The benefit of settlement is that it can occur at any point in the complaint/investigation process. This allows for the opportunity to resolve the matter early to avoid increasing costs and impacts on time and energy.

Settlement is (or can be) very informal and include negotiated terms for confidentiality, no admission of liability and dismissal of the initial complaint. Settlement agreements are fully enforceable contractual documents and can help to avoid costs associated with the investigation process and litigation.

Mediation
Mediation is a more formal method of dispute resolution which involves the participation of a neutral third-party. State and federal agencies tasked with enforcing anti-discrimination, harassment and retaliation statutes offer mediation at no cost. Mediation gives the parties an opportunity to sit down together in a one-day session to determine if mutual ground can be found which would allow resolution of the underlying allegations. Mediation follows a semi-informal process, allows for confidentiality and the ability to negotiate various terms of settlement (e.g., no admission of liability, dismissal of charges).

Conciliation
If an employer receives a Letter of Determination, the notice will include – per statutory requirements – an offer for the parties to participate in conciliation discussions. Conciliation is a last-ditch effort aimed at resolving charges before the EEOC finalizes its decision whether or not to take the case on for litigation or issue a right-to-sue notice. Like every resolution option, conciliation has its pros and cons; A few of both are listed below:

• Traditional negotiation strategies are available (e.g., offer, counter-offer).
• Allows for an informal (i.e., private) resolution before formal charges are leveled and litigation initiated.
• As with all forms of dispute resolution, conciliation provides certainty with regard to cost and damage control associated with litigation.
• Conciliation is conducted by the initial agency investigator who offers an opinion on the merits of the matter and suggests possible settlement terms (as opposed to a neutral third-party).
• Relies on the will of the parties in accepting the investigator/conciliator as a reliable authority and how much each values resolution.

Receiving a notice of administrative complaint from a state or federal agency is an anxiety inducing event for any employer. Here is a recap of some key points to keep in mind if your organization receives a notice of complaint from an administrative agency:

1. Ignoring the notification letter will not make it go away.
2. A notice of complaint does not constitute a finding that your business engaged in unlawful conduct.
3. Consider early dispute resolution options if there are concerns that a factual investigation may provide evidence that would allow the agency investigator to have “reasonable cause” to believe unlawful activity occurred.
4. Seek legal counsel in preparing a Statement of Position, responding to any Requests for Information or agreeing to an on-site visit by the agency investigator.
5. Communicate with the agency investigator to identify the least burdensome and most efficient way to gather/present facts or request additional time to respond.

Note: This article discusses administrative complaints filed with (and prosecuted by) a state or federal agency. It does not include information about responding to civil complaints alleging violations of anti-discrimination, harassment and retaliation laws.

California’s Fair Employment and Housing Act (FEHA)[i] protects employees from discrimination, harassment or retaliation on the basis of any protected classification; those that are familiar such as race, religion, sex and age, and those employers may not be so familiar with such as marital status, ancestry and national origin. Title VII of the Civil Rights Act of 1964 (Title VII)[ii] – enforced by the Equal Employment Opportunity Commission – also prohibits discrimination based on protected classifications.

This article focuses on best practices for avoiding claims that relate specifically to national origin.  

Types of Claims:

Common claims under state and federal laws relating to national origin tend to focus on harassing or retaliatory conduct. Typical allegations of harassing conduct include the use of epithets, derogatory comments, slurs, threats of deportation, mockery of an accent, a language or its speakers. Retaliatory conduct can take the form of threats about the applicant or employee’s immigration status including contacting immigration authorities.

Discrimination based on national origin can take many forms and include actions like those outlined above supporting claims of harassment or retaliation. Citizenship requirements or employer actions tied to immigration status – unrelated to an employer’s duty to comply with federal immigration laws –language and accent focused policies/practices can all run afoul of FEHA and Title VII’s national origin protections against discrimination.  

Risky Actions:

The scenarios outlined above (e.g., derogatory comments, slurs and the like) can evidence discriminatory, harassing or retaliatory conduct. Other types of risk inducing conduct include requiring an individual to present a driver’s license unless doing so is permitted/required by law. Adopting or enforcing policies that limit or prohibit the speaking of any language in the workplace unless the restriction is narrowly tailored and justified by business necessity.[iii] Rejecting an applicant because the individual’s first language is not English or because of a belief that the person is not qualified to engage with customers/vendors over the phone for the same reason. And doing so without first determining that the language skills actually interfere with the person’s ability to perform the job.

Reducing Risk:

While no single approach will work for every workplace, the following suggestions may help reduce the risk of allegations of wrongful conduct based on an individual’s national origin:

• Enforcing company-wide policies against harassment, discrimination or retaliation based on any protected classification – including national origin – is the employer’s best line of defense against national origin-based allegations of wrongful conduct.
   
• Cultivate a workplace environment that shows zero tolerance for those who engage in unlawful conduct: no matter their spot on the company’s organizational chart. Accountability is one of the most effective ways to engender trust among workers.
   
• Never forget that an employee’s immigration status has no impact on protections afforded by the FEHA.[iv]
   
• Always rely on multiple recruiting sources. Recruiting from multiple sources increases diversity among applicants and can help to avoid inadvertently excluding some national origin groups.
   
• Develop and enforce objective, job-related criteria for identifying and addressing unsatisfactory performance or conduct that can result in discipline, demotion or termination. Remember to provide support to managers and supervisory personnel tasked with addressing difficult performance-related issues.

Employers may find the following resources helpful in preventing discrimination, harassment or retaliation based on protected classifications including national origin: California Department of Fair Employment and Housing’s Resources for Employers; EEOC Enforcement Guidance on National Origin Discrimination.   

Members with questions about reducing the risk of claims associated with protected classifications should contact Western Growers.