Discrimination Charges – Investigation Versus Mediation?

The attorneys at Nardone Limited regularly assist our clients with labor and employment and human resource issues, including providing guidance on preventing and responding to discrimination and harassment charges filed with the Equal Employment Opportunity Commission (“EEOC”) or the Ohio Civil Rights Commission (“OCRC”). As an employer, if you receive a discrimination charge filed by a current or former employee, one of the first decisions you need to make is whether you want to proceed with mediation or a probable cause investigation. In the official notification of the discrimination charge from the OCRC or EEOC, an employer is provided with choosing mediation, option A, or an investigation, option B. Each option is fully explained. See example of official notification of discrimination charge (the “Charge”). Whether the employer decides to proceed with the mediation or the investigation will be dependent upon the facts and circumstances of the case. Either way, the employer should obtain legal counsel to obtain advice on the best option based upon the specific facts and circumstances.

Mediation

The Charge explains the mediation option as a program aimed at helping parties resolve their disputes without a full investigation by the EEOC or OCRC “or costly and time-consuming litigation.” The Charge also describes the mediation program as a way to bring “disputing parties together in an effort (i) to resolve their complaint through communication and problem solving” and (ii) “to provide a ‘win-win’ resolution.” What they do not mention in the Charge is that at least 75{c91082aefe0e580fe546c40af534787b48cfd474f8c9ab8dac50bf49a7a1c43a} of these cases, filed by a current or former employee, are groundless. See this statistic also mentioned in our article on EPLI and Defending Against Workplace Harassment and Discrimination. In fact, in a majority of discrimination cases, the former/current employee, who is filing the Charge with the OCRC or the EEOC, is typically a disgruntled employee (also known as the “charging party”) who wants a monetary settlement or revenge against the employer or both.  For one of these reasons, or many others, these employees misrepresent the facts or outright lie in the charging document.

Additionally if the employer initially chooses to proceed with the mediation option, the employer needs to be prepared and willing to make a monetary settlement offer to the charging party in those proceedings. If mediation does not resolve the matter, then the OCRC or the EEOC will investigate the matter.

Investigation

Whether the employer chooses to proceed with the mediation or the investigation, the employer needs to conduct an internal investigation of the allegations contained in the Charge. Additionally, the employer needs to be prepared to obtain legal counsel to respond on their behalf. Even at the outset when making the decision to proceed with the mediation or the investigation, it is important to have knowledgeable legal counsel to assist in making initial decisions and ultimately to prepare and appropriately respond on an employer’s behalf to obtain a “no probable cause” decision for the employer and to prevent the matter from being argued or litigated any further. In most cases, we typically recommend our clients to proceed with the investigation option for the following reasons:

  1. If the employer chooses mediation, it might have to prepare for and incur expenses for both the mediation and the investigation options if the matter is not resolved at the mediation. Whereas, with the investigation, the OCRC or the EEOC will make a decision and if the employer properly responds in this investigation, the decision will in most circumstances be a “no probable cause” decision.
  2. Most discrimination charges are groundless and the employer does not want to pay a disgruntled current or former employee a settlement. It is the principle, and if they do otherwise, then it sets a bad precedent for future employment dispute matters.

Our prior articles regarding: (i) How to establish and enforce harassment policies; (ii) How to prevent claims of harassment; (iii) How to respond to a harassment complaint; (iv) What documentation should be maintained during an investigation; (v) EEOC statistics for 2014; and (vi) 2015 Retaliation Charges – EEOC Publishes Statistics are helpful to the discussion of defending discrimination and harassment in the workplace.

Contact Nardone Limited

Nardone Limited has conducted many discrimination and harassment investigations for clients and has also defended clients against discrimination or harassment charges filed with the EEOC or the OCRC. A discrimination charge could be the result of a disgruntled current or former employee seeking revenge. All employers must ensure that they are complying with federal and state anti-discrimination laws, including: (i) establishing and enforcing anti-harassment and anti-discrimination policies and procedures; (ii) providing the necessary training on such policies; and (iii) addressing related complaints promptly, thoroughly, and sufficiently to defend against potential discrimination charges or litigation and related liability. If you would like more information on the EEOC or the OCRC, or need advice or representation in an employment dispute, contact one of our employment attorneys.