Susan Best, Stephanie Jones and Y’Noka Bass are attorneys at Gordon Rees Scully Mansukhani, LLP.
When a current or former employee files a discrimination charge or retaliation complaint with an administrative agency such as the U.S. Equal Employment Opportunity Commission or a state or local fair employment practices agency, employers often think of it as a precursor to “real” litigation.
In truth, agency-level proceedings are litigation, and how a company handles them can significantly impact both the outcome of the charge and its exposure in any later lawsuit.
Below are some things HR and management should expect, along with a few best practices to navigate the process strategically and efficiently to avoid common pitfalls at the administrative agency level.
1. Understand the process
When a charge is filed, the agency notifies the employer and requests a position statement — the employer’s formal written response. This document sets the tone for the entire case. It is your first (and sometimes only) opportunity to lay out your side of the story, demonstrate professionalism and credibility and provide factual and documentary support. Do not take the position statement lightly, and consider whether you have:
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Laid out the important and necessary context;
- Made any admissions that were not entirely vetted; and
- Addressed the accusations in the charge.
After the employer submits its position statement, the employee (or “charging party”) may be invited to respond. On most occasions, once the position statement is filed, you may not hear from the agency for quite some time. This is normal and to be expected.
The agency may then: (1) conduct an investigation (often involving document requests, interviews or an on-site visit); (2) attempt informal resolution such as mediation or conciliation; or (3) issue a finding of “cause” or “no cause.” If the agency finds “no cause,” the matter is typically closed with a right-to-sue letter, allowing the employee to file a lawsuit in court within a specific timeframe (usually 90 days). If “cause” is found, the agency may pursue conciliation or, rarely, litigation on the employee’s behalf.
2. Treat the charge seriously
Even though agency charges are less formal than court proceedings, they are very important. A poorly handled response can damage credibility, create discoverable admissions or foreclose defenses later.
Conversely, a well-prepared, factual and respectful response can persuade the investigator that the employer acted lawfully, often leading to an early closure. Employers should:
- Gather facts quickly, thoroughly and objectively. Interview key witnesses, preserve documents, and understand the full context before drafting any response.
- Be accurate and measured. Overstatements or inconsistencies can come back to haunt you in later litigation.
- Avoid retaliatory conduct. Even subtle changes in treatment after a charge is filed can trigger separate claims, creating a host of legal hurdles.
3. Coordinate HR, legal, risk and management
Agency charges often arise out of communication breakdowns or personnel decisions that were not fully documented or communicated appropriately. HR should partner closely with outside counsel (or internal legal teams) to gather documents, identify and address any weaknesses (e.g., missing documentation of performance counseling or inconsistencies with company policy), and anticipate follow-up questions the agency is likely to ask.
Most employment practice liability insurance policies support retention of outside counsel for administrative charges. Even more, outside counsel have familiarity with agency personnel, proceedings, timelines and recent outcomes. Consider putting your carrier on notice as soon as you receive information about an administrative charge, and weigh whether it is beneficial to engage outside counsel.
Establish one internal point of contact to manage communications with the agency and avoid inconsistent or informal responses. Remember, anything you say to the agency is being used to render a decision, so be thoughtful and intentional in your approach.
4. Consider early resolution — but be strategic
Most agencies encourage mediation or settlement. Early resolution can save time, money and stress, but it is not always the right move.
Before agreeing to mediation, assess whether there is genuine exposure or whether the employee’s claims are weak. Consider the potential precedent for other employees as well. Sometimes settling quickly can encourage future claims.
If you do mediate, come prepared with key facts, decision-makers and clear authority parameters. You will be asked to present your side of the case and address the employee's perspective. How you do so could mean the difference in reaching a resolution or further litigation ensuing.
5. Preserve and organize documentation
Documentation often wins (or loses) these cases. Ensure that:
- Performance evaluations, discipline records and policy acknowledgments are complete and contemporaneous.
- Emails, texts and other communications relevant to the decision are preserved.
- The company’s narrative aligns with its documentation.
Agencies value organized, timely responses, and disorganized or incomplete files undermine credibility.
6. Be professional with investigators
Agency investigators vary in experience and approach, but professionalism always helps. Treat investigators as neutral factfinders, not adversaries.
At the end of the day, the investigator decides the outcome of the charge, and it is best that you get off on the right footing. Provide requested documents promptly and courteously, and clarify misunderstandings respectfully and in writing when necessary. A cooperative tone enhances the employer’s credibility and can help steer the investigation toward closure.
7. Plan ahead for possible litigation
Even if the matter seems minor, assume the record could be reviewed by a judge or jury later. A disciplined approach at the agency stage can streamline later litigation and preserve defenses. That means you should:
- Draft your position statement as though it might be Exhibit A in a future lawsuit.
- Avoid unnecessary characterizations or personal judgments about the employee.
- Emphasize objective facts, documentation and company policy.
8. Learn from every charge
Each agency filing is an opportunity to review your HR practices. Ask: Was the decision well-documented? Did managers follow internal protocols? Could training or communication prevent similar claims in the future? Using these situations to improve documentation and consistency pays dividends beyond the single case.
Handling claims at the administrative agency level can be complicated, time-consuming and difficult to navigate. Outside counsel can help develop a strategic approach, safeguard your interests and maximize your chance for a favorable outcome.
