You better not pout, you better not cry, you better not shout, I’m telling you why, the EEOC and OHRC complaints are on their way. There appears to be a rise in the number of EEOC and OHRC complaints being filed by employees. This is due to a variety of factors, new statutory amendments, new regulations, poor economy, too many to be fully enumerated here. However, with a little background information, some basic knowledge of these complaints and some practical guidelines you can understand what an EEOC or OHRC complaint is and what will likely be required of you if you get one.

The EEOC is the Equal Employment Opportunity Commission. This is a Federal agency that receives and processes complaints by employees against their employers that arise out of a variety of Federal laws. The OHRC is the Oklahoma Human Rights Commission. It is a state agency that has a “work sharing” agreement with the EEOC. They perform essentially the same functions as the EEOC. There is no way to determine how a charge filed with the EEOC is assigned to the EEOC versus the OHRC. It appears to be a random selection. However, it may have something to do with geography. The Western part of the state, which includes Oklahoma City, has two EEOC offices. The Eastern part of the state, which includes Tulsa, does not have one at all – only an OHRC office. That being said, complaints can go to either agency.

These agencies accept complaints that arise under a variety of Federal employment laws. In fact, filing a charge with the EEOC is a prerequisite for a complaining employee who wishes to later file a lawsuit against her employer. The main goal of these agencies is to ensure compliance with the rules and regulations passed by the agency. In other words, the agency’s main objective is not litigation. However, the EEOC can choose to litigate a charge on behalf of a complaining party, but this is not the main objective or purpose of this agency.

Generally, the first step taken by the EEOC or OHRC is to ask the employer if it wishes to mediate the claim. There are a variety of considerations in determining whether you want to mediate a charge from the EEOC or the OHRC. It is best to consult your attorney to discuss these issues, many of which likely include a factual analysis.

When an employee files an EEOC complaint, they are required to list some of the facts and the charges they are alleging against their employers. Depending on whether the employee is represented by an attorney and a number of other factors, these complaints can have a wide variety of specificity. Hopefully the charge will advise an employer just what it is the employee claims they did wrong. This is important because at the very least, an employer will have to respond to the charges against it, likely in the form of a statement of position.

A statement of position is the employer’s written position addressing the employee’s charge. It is essential to remember that this response can become an admission later in litigation, so it is important to respond to the facts and allegations of the complaint and again to consult your attorney in completing this step. It is also a good idea to have your attorney and/or a very experienced HR individual investigate the complaint and make sure all pertinent facts are developed in order to best respond to a charge’s allegations.

After the employer submits its statement of position, the EEOC or the OHRC will often want to interview key individuals named by the employee. For management personnel, your attorney can be present for these interviews. However, for mid to lower level employees, there is no right to insist on the presence of your attorney.

Many times, the agency will want to look at various documents that you have. These documents can be anything from the personnel file of the complaining party to your own policies and procedures that address various topics relevant to the charge, i.e. your sexual harassment policy, etc. If the agency issues an order for such documents, they must be turned over. If you get such an order, it is a good idea to have your attorney look through any documents before they are produced to ensure there are no privileged communications that need to be preserved.

Depending on what the investigation reveals, the agency may want to further investigate beyond the steps outlined here, or it may write up their report on the charge after this time. If it is the OHRC that is conducting the investigation, the OHRC will make a recommendation to the EEOC who will accept or reject the OHRC’s findings.

Unless the EEOC decides to file a lawsuit on behalf of the complainant at the end of the investigation, it will issue a “right to sue” letter. This is a standard letter that demonstrates the employee has likely taken the proper administrative steps concerning their complaint and can now sue in a court of law. Every person who files a charge with the EEOC or OHRC will get a right to sue letter, regardless of the merits of the claim.

The complainant has 90 days from receipt of the right to sue letter in which to file a lawsuit claiming violations of the federal employment laws. [NOTE: The employee may have a longer period of time to file a lawsuit under Oklahoma law.]

Practical tips if you get one of these complaints:

• Always be courteous to the investigators. It may feel like you are being indicted without a chance to respond, but remember this is the agency’s job;
• If you have an attorney who handles these complaints, get her the information about the complaint, including the complaint itself, early;
• If you have an attorney who handles these for you, have any communication flow between the agency and your attorney;
• Realize that the agency is working on behalf of the complainant and that it is their purpose to investigate these complaints. In other words you may claim they are untrue, but it is the job of the agency to look into it;
• Remember to discuss this complaint with any relevant individuals and to work closely with HR personnel who can be your front line in these matters;
• Be sure everything you submit to the agency is accurate because it may be used in a lawsuit later. If you need additional time to respond, the agency is generally receptive (especially if you’ve followed the first bullet point and were courteous).

By McLaine DeWitt Herndon, mherndon@dsda.com