Employment discrimination cases generally begin when a claimant files a charge of discrimination with the Equal Employment Opportunity Commission. Responding employers often become defensive immediately, provide minimal explanations, and challenge the EEOC to prove the charge. In almost all cases this is the wrong approach. The employer should demonstrate for the EEOC that the discrimination charge is groundless.

      EEOC investigations usually follow a general course. If an employer response is needed, the investigator will request a position statement along with written responses to "requests for information." The investigator also may conduct an on-site inspection and, if necessary, a fact-finding conference, during which witnesses are interviewed.

      The employer has two goals during this process. The first is to prevail. The second, equally important goal is to build a good case record. Even if the employer prevails before the EEOC, the claimant still may sue the employer. Much of the EEOC's record then will be available to the parties. Its contents may persuade or discourage an attorney from taking the case on behalf of the claimant. The record also may be used as evidence. Therefore, it must be must be carefully constructed.

      It is important initially to investigate the allegations thoroughly before responding to the charge. The claimant's personnel file should be reviewed as a routine. Consider as well any witness statements, in-house reports and relevant complaints. Interview supervisors and co-workers about incidents specified in the charge and any other incidents suggesting discrimination. Consider the accuracy of each source consulted. It is important to distinguish fact from opinion.

      During the course of this internal investigation, the employer should watch for these warning signs: lack of documentation; claimant's long service; satisfactory work record and good past evaluations; abrupt and unexplained changes in performance or evaluations; previous complaints about discriminatory activity; and departure from company policy. While none of these signs is necessarily fatal, the presence of any must be explained.

      After the internal investigation is completed and the employer's position is determined, a written response to the charge can be submitted. Since often the charge is merely a few, bare allegations, this is a good opportunity to put a complete statement of facts (from the employer's viewpoint) into the record. It is a chance to "educate" the investigator. Avoid antagonistic or evasive statements. They only raise questions.

      While the response must be signed, it should not be in the form of a sworn statement. The employer does not want to be limited to only the information in these documents.

      When the investigator requests information, the responses should be complete, but tailored to answer only the specific requests. Written explanations of documents and data should be included where the analysis will enhance the employer's position, or to explain why the information fails to support the charge. Avoid attesting to the completeness of the information submitted. Responses may need to be supplemented at a later date without suggesting evidence manipulation.

      The employer should beware of requests for immaterial information. Charges can be amended to encompass newly discovered information, even if it is not relevant to the original charge. For example, suppose a claimant charges an employer with age discrimination in its department layoffs. A request for information might ask for the name, job title, salary, race, gender, age and seniority of every employee in the department. Some of this information is relevant. The inquiries regarding race and gender are not. Other information concerning the salary and seniority of employees may or may not be relevant depending on the employer's criteria for layoff selection. Irrelevant information should not be provided. The employer otherwise may have to justify its actions on grounds that were not originally challenged. Instead, relevant information should be provided and an objection should be made to the remainder of the request.

      As part of the request for information, the investigator may also request an on-sight inspection. This is no cause for alarm, but it should be avoided if possible. Rather than immediately granting access to the workplace, ask the investigator to explain. Frequently, the purpose is to interview witnesses or review particular records. In most cases, witness statements and records can be made available to the investigator at their office. Thus, the employer cooperates without the disruption of an on-site inspection.

      A fact-finding conference, if held, usually is the only face-to-face meeting of the parties. The investigator conducts the conference, questioning the parties and other witnesses. The role of an employer representative is limited. He or she is given little opportunity to speak on the record or to question witnesses. The representative, however, may suggest questions to the investigator. This has four benefits. First, it shapes the general scope of inquiry. Second, it may assist an employer's witness that is having difficulty or pin down an evasive claimant. Third, it insures that helpful facts will be in the record. Finally, when used sparingly, it also enhances the employer's image as a credible source of information.

      An employer's self-representation before the EEOC will affect not only the Commission's decision, but also the course of any subsequent litigation of the claims. It is important that the employer take advantage of opportunities the system presents and beware of its potential pitfalls.

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