How Businesses Should Respond to EEOC Charges of Discrimination in Arizona

If you are an employer in Arizona, you may face a situation where an employee or former employee files a charge of discrimination against your business with the Equal Employment Opportunity Commission (EEOC) or the Arizona Civil Rights Division (ACRD). The EEOC and ACRD are federal and state agencies that enforce anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Arizona Civil Rights Act.

A charge of discrimination is a formal complaint that alleges that your business discriminated against an employee or applicant based on a protected characteristic, such as race, color, sex, national origin, religion, disability, age, or genetic information. A charge of discrimination does not mean that you have violated the law or that the EEOC or ARCD has made a finding of discrimination. It is simply the first step in a legal process that may involve an investigation, mediation, litigation, or settlement.

As an employer, you have certain rights and responsibilities when you receive a charge of discrimination. Here are some tips on how to handle and respond to an EEOC or ARCD charge of discrimination in Arizona:

1.      Don’t ignore the charge.

When you receive notice of a charge of discrimination from the EEOC or the ACRD, you should review it carefully and follow the instructions on how to respond. You should also notify the affected managers and supervisors and ask them to preserve and gather all relevant documents and evidence related to the charge, such as personnel files, performance evaluations, disciplinary records, emails, policies, and procedures. You should also refrain from destroying or altering any documents or evidence that may be relevant to the charge.

2.      Contact an employment attorney as soon as possible.

A charge of discrimination may lead to complex and costly legal actions by the charging party of the EEOC or the ACRD against your business. Therefore, it is advisable to consult with an experience employment attorney as soon as possible after receiving the charge of discrimination. An employment attorney can help you understand your rights and obligations under Arizona and federal law, assess the merits and risks of the charge, advise you on how to respond and cooperate with the EEOC or the ACRD, represent you in mediation or litigation, and assist you in resolving the charge in the most favorable and efficient way possible.

3.      Plan your internal investigation.

Before you respond to the charge of discrimination, you should conduct your own internal investigation to gather facts and evidence that support your position. You should interview witnesses, review documents, and analyze policies and practices that are relevant to the charge. You should also document your finding and conclusions in a clear and objective manner. Your internal investigation can help you prepare your respond to the charge and defend yourself against any potential claims. You may want to retain an employment attorney to conduct the investigation, as they will be knowledgeable of Arizona and federal law and the laws’ practical implications in a business setting.

4.      Guard against retaliation or the appearance of retaliation.

One of the most important things to remember when dealing with a charge of discrimination is to avoid any retaliation or appearance of retaliation against the charging party or anyone who cooperates with the EEOC or the ACRD investigation. Retaliation is any adverse action taken against an employee or application because they are engaged in a protected activity, such as filing a charge of discrimination, participating in an investigation, or opposing discrimination. Retaliation is illegal under federal and Arizona law and can result in additional liability for your business. Retaliation can include actions such as termination, demotion, harassment, denial of benefits, negative performance reviews, or exclusion from opportunities. You should treat the charging party and any witnesses fairly and consistently with other employees and applications and refrain from any actions that could be perceived as retaliatory.

5.      Establish a point of contact with the EEOC or the ACRD

After receiving a charge of discrimination, you should designate a person who will be responsible for communicating and cooperating with the EEOC or the ACRD investigator assigned to your case. This person should be knowledgeable about your business operations, policies, practices, and personnel matters. This person should also be courteous, professional, responsive, and truthful when dealing with the EEOC or the ACRD investigator. You should also keep a record of all communications and interactions with the EEOC or the ACRD investigator.

6.      Check to see if the charge was timely filed.

One of the possible defenses that you may have against a charge of discrimination is that it was not timely filed. Under federal law, an employee or applicant generally has 180 days from the date of the alleged discriminatory act to file a charge of discrimination with the EEOC. Under Arizona law, an employee or applicant generally has 300 days from the date of the alleged discriminatory act to file a charge of discrimination with the ACRD. If the charge was filed after these deadlines, you may be able to argue that it should be dismissed for lack of timeliness. However, there may be exceptions or extensions to these deadlines depending on the circumstances of the case, so you should consult with an employment attorney before raising this defense.

7.      Provide a response to the charge.

The EEOC or the ACRD will usually ask you to provide a written response to the charge of discrimination, also known as a position statement. A position statement is your opportunity to explain your side of the story and present any facts and evidence that show that the allegations in the charge are incorrect or do not amount to a violation of the law. You should prepare your position statement carefully and thoroughly, with the assistance of an employment attorney if possible. You should also respond to any requests for additional information or documents from the EEOC or the ACRD investigator. You should provide accurate, complete, and relevant information and documents that support your position and comply with the deadlines and instructions given by the EEOC or the ACRD investigator.

8.      Consider EEOC or ACRD mediation to resolve the charge.

The EEOC or the ACRD may offer you and the charging party an opportunity to participate in mediation to resolve the charge. Mediation is a voluntary and confidential process where a neutral third-party mediator helps you and the charging party reach a mutually agreeable settlement. Mediation can be a faster, cheaper, and less adversarial way to resolve a charge than litigation. Mediation can also preserve or improve your relationship with the charging party and prevent future disputes. However, mediation is not appropriate for every case and you should weigh the pros and cons of mediation before agreeing to participate. You should also consult with an employment attorney before entering into any settlement agreement.

9.      Cooperate with the EEOC or ACRD investigation.

If mediation is not successful or not available, the EEOC or the ACRD will continue to investigate the charge of discrimination. The EEOC or the ACRD investigator may request more information or documents from you, interview witnesses, conduct on-site visits, or hold conferences with you and the charging party. You should cooperate fully and promptly with the EEOC or the ACRD investigation and provide any information or documents that are relevant and responsive to the charge. You should also keep in touch with the EEOC or the ACRD investigator and update them on any changes or developments in your situation.

10. Await the outcome of the EEOC or the ACRD investigation.

After completing its investigation, the EEOC or the ACRD will issue a determination letter that states whether it found reasonable cause to believe that discrimination occurred or not. If the EEOC or the ACRD finds no reasonable cause, it will dismiss the charge and issue a notice of right to sue to the charging party, which allows them to file a lawsuit in court within 90 days. If the EEOC or the ACRD finds reasonable cause, it will try to conciliate (settle) the charge with you and the charging party. If conciliation fails, the EEOC may file a lawsuit against you in federal court on behalf of the charging party, or issue a notice of right to sue to the charging party. The ACRD may refer the case to the Arizona Attorney General’s Office for possible litigation, or issue a notice of right to sue to the charging party.

Receiving an EEOC or ACRD charge of discrimination can be stressful and challenging for any business. However, by following these tips and working with an employment attorney, you can handle and respond to an EEOC or ACRD charge of discrimination in Arizona effectively and efficiently.

If you need legal assistance with an EEOC or ACRD charge of discrimination in Arizona, please contact us at bortegaloya@outlook.com. Briana is an experienced employment attorney who can help you protect your rights and interests as an employer.

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Briana Ortega Law PLLC is a Southern Arizona law office with locations in Nogales and Tucson. Briana Ortega represents businesses, their owners and managers, and other individuals in employment and business matters including civil litigation. For more information about Briana Ortega Law PLLC’s practices, click here.