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.
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 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).
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:
- Ignoring the notification letter will not make it go away.
- A notice of complaint does not constitute a finding that your business engaged in unlawful conduct.
- 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.
- 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.
- 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.
[i] This type of notice informs the parties of the outcome of the investigation including the charging party’s right to file a lawsuit in civil court within a specific number of days from receipt of the notice.