An allegation that an employee believes he or she has been discriminated against by an employer presents a number of serious and complicated questions.
When the employee feels compelled to take those allegations to a governmental agency, an additional set of questions arises. So what do you do when a discrimination charge arrives in the mail?
Jane is the human resources manager for Mid-Size Corp. She arrives at the office one Monday morning and finds a notice from the Ohio Civil Rights Commission (OCRC) in the mail, informing her that Susie has filed a charge of discrimination against Paul, her boss. Susie alleges that Paul discriminated against her based on her pregnancy by failing to promote her to manager.
One of the first decisions Jane must make is whether to retain an attorney to handle the charge. Mid-Size is not required to retain an attorney to represent it before the OCRC or the Equal Employment Opportunity Commission (EEOC).
While not required, it should be carefully considered. Many times, the employee who has filed the charge will be represented by an attorney. Moreover, as the information disclosed in the investigation of the charge may be used in subsequent litigation, having an attorney involved at the outset may be helpful in ensuring the best possible defense.
Jane will also likely need to decide whether the case should be mediated. Both the OCRC and the EEOC strongly encourage employers and employees to mediate disputes. The OCRC’s mediation program is free and staffed by trained mediators, who are not later involved in the investigation of the charge. If mediation is not successful, the charge returns to the regular investigation process.
While there is no formulaic way to determine if mediation is appropriate, Jane should carefully consider this possibility. In many cases, if not most, mediation has few drawbacks. It allows both parties to air their dispute in a neutral forum before the parties get too entrenched in adversarial positions. Mediation also allows charges to be resolved while limiting the expenditure of both time and money.
When Jane receives the charge, she must also consider taking steps to ensure evidence is preserved. She should make sure that e-mails are retained and documents are not destroyed. Jane has no obligation to create documents that do not exist, but she must save those that do.
In some cases, if Jane does not take proper precautions to preserve evidence, Mid-Size may create an additional cause of action for spoliation of evidence, which may turn a low- or medium-risk case into a high-risk case.
Another way Jane can turn this case into a high-risk case is by failing to take steps to prevent retaliation. Regardless of whether Paul actually discriminated against Susie, Paul is likely to feel hurt by the allegation. He may worry about his job and his reputation.
He may react by lashing out at Susie. He may try to issue her a disciplinary notice for a violation of company policy that, while legitimate, has been ignored for years, and that many other employees have also violated without repercussions.
Jane needs to take steps to ensure that this does not happen. She should meet with Paul and remind him that Mid-Size does not tolerate any type of retaliation. Jane may also want to consider taking Paul out of his role as Susie’s supervisor on a temporary basis or require Paul to discuss changes to any aspect of Susie’s employment with Jane before the change is made.
Obviously, Jane faces a lot of very important decisions. She must decide whether to hire an attorney, whether to mediate, how best to preserve evidence and how best to prevent retaliation. These early decisions are very important and will have a tremendous impact on how the charge proceeds.
Steven R. Miller is a staff attorney in the Cincinnati office of Vorys, Sater, Seymour and Pease LLP, where he practices in the labor and employment group. Reach him at (513) 723-4039 or [email protected].
