The majority of formal employment-related litigation begins with the filing of a complaint or charge at a local, state, or federal administrative agency. This is because many anti-discrimination statutes such as Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, Age Discrimination in Employment Act, Genetic Information Nondiscrimination Act, the Connecticut Fair Employment Practices Act, the New York State Human Rights law and more all require employees to exhaust their administrative remedies before seeking redress in the court system. This means the state, federal, or local agency must investigate the employee’s claims before they are brought in court (subject to limited exceptions). The types of claims brought vary widely and can include complaints of discrimination in employment based on race, color, religious creed, age, sex, pregnancy, sexual harassment, marital status, national origin, ancestry, present or past mental disability, mental disorder, mental retardation, learning disability, physical disability, genetic information, and sexual orientation. We regularly provide counsel, defend, and help employers navigate through this administrative process.
If administrative charges are effectively handled, they never become court room litigation. After a proper investigation, the best defense is made and usually the charge is dismissed. However, if the investigation uncovers serious exposure and weakness, we can settle these cases and end the case before time and money is spent defending a case that likely won’t be won. The choice is the client’s, but our job is to evaluate and make sure the client has all the facts needed to make a smart decision about how to proceed. An administrative charge has different procedures based on the agency involved, but most follow the following format:
Before a position is formulated, we investigate the charge. We review the record and interview witnesses. Because we are often able to have charges dismissed and courtroom litigation does not follow, we make tough recommendations to our clients about what is reasonable and what is wasteful in an investigation. Do we interview every witness, do we search every comparable situation? The easy answer is yes, but is that prudent? We conduct a cost-benefit analysis and determine the best approach for client needs. Not only do we decide how to defend the charge, but we also decide whether settlement is the better strategy. Either way, our clients are prepared for whatever comes next.
We routinely prepare position statements (the employer’s response) to the administrative charge. The position statement is oftentimes the employer’s first chance to tell its side of the story and the first chance for the employer to assert its legal defenses.
The position statement can also serve as a landmine for unsuspecting employers. This is because the position statement can serve as an admission that can be used against the employer in later litigation if not handled with care. This is especially true when an issue raised in one arena is not important to that agency but is crucial to another agency. We understand these nuances and use our knowledge to minimize our client’s total exposure.Understanding litigation can be expensive, we work to provide efficient and cost effective position statements. We do this by staffing correctly, focusing quickly on the issues raised in the charge, and by relying on our experiences and good relationships with administrative agencies to see the charge or complaint to full resolution. We also use our experience to focus agencies on certain issues and away from others where our clients face more exposure.
During the investigation portion of an administrative charge, administrative agencies, like the Equal Employment Opportunity Commission, oftentimes conduct onsite investigations. This includes an investigator interviewing company witnesses regarding the allegations in the underlying charge or complaint. These employee statements may be taken under oath and can be used against the employer in subsequent litigation. We routinely prepare companies on handling and navigating onsite investigations. We also advise our client of the wisdom of providing such statements or trying to avoid them. The right answer varies case by case.
Fact Finding Hearings
Some state agencies, for example, the Connecticut Commission on Human Rights, conduct Fact Finding hearings during the administrative process. At the hearing, the investigator may question the parties under oath. While no cross examination officially takes place, the parties may propose questions to ask the other side or the witnesses. We routinely defend employers at fact finding hearings and prepare witnesses to testify under oath.
Most agencies offer settlement services. Some are formal mediations or settlement conferences while others are informal parts of the Fact Finding Hearing. We help our clients both evaluate the case for settlement and prepare effective strategies to reach settlements that are fair to our clients.
Issuance of a Finding
Once the administrative agency’s investigation is complete, the state, local, or federal agency will issue a finding. If the administrative agency has no cause to believe a statute has been violated, the employee is given a dismissal and a notice of right to sue or equivalent based on the jurisdiction. The employee then may proceed with filing a complaint in state or federal court. Part of our implicit strategy is to show the employee that the case is so weak, it does not warrant further expenditure of time to find an attorney to take the case to court. After all, winning at the agency level is of little value if the employee nonetheless decides to file suit in a court!
Of course, if the administrative agency finds merit in the case, the case continues. In many instances, the agency will hold some kind of public hearing which is an abbreviated court room trial. We defend our clients at these hearings and treat them as any other courtroom litigation.
We work with employers throughout this entire process to ensure the Company is legally protected.