“If the EEOC is investigating a discrimination claim, can the employer question the employee at the same time?”

Question: Dear Alan: I have watched many of your website videos and love them.

An employee has filed a claim with the U.S. Equal Employment Opportunity Commission (or “EEOC”) alleging age discrimination against her employer. This person has been assigned someone from the EEOC to investigate the claim. The employer was notified of the employee’s EEOC claim and the EEOC investigation has begun.

Here are my questions: First, can the employer contact the employee directly and ask to discuss the claim over the phone during the investigation? Isn’t the employer supposed to reply to the EEOC about the claim, and not be allowed to contact the employee directly?

Second, if the employer does contact the employee directly, can the employee refuse to participate in this discussion and ask the employer to contact the EEOC?

West Ashley, South Carolina

Answer: Dear Lenore: Thanks for your compliment about our videos. We see them as an extension of the many written materials we now offer. Wait until you see our App!

1. Filing a complaint with a government agency does not change the basics of the employment relation. There are many, many different government agencies that oversee and regulate different aspects of the employment relation, including state, federal and local agencies that regulate, among other things, (a) workplace safety, (b) overtime and minimum wage issues, (c) claims of discrimination, (d) rights to unionize, and (e) whistleblower complaints.

When an employee files a complaint with one of these agencies, the agency investigates and sometimes participates in a resolution, but the participation of a governmental agency does not change the basics of the employment relation. Rather, agencies such as the EEOC are “outside” third parties, separate, distinct and outside of the employment relation. The EEOC’s sole job is to engage in an investigation and, possibly, prosecute filed claims to see it they see evidence of illegal discrimination.

We offer Model Letters entitled “Model Letter for Objecting to Illegal Discrimination – Age, Race, Gender or Disability – to Your Employer, that you can use to help yourself if you believe you have been illegally discriminated against. To obtain a copy of one of these useful model letters, just [click here.] Delivered by Email – Instantly!

2. One important “basic” of the employment relation is that employees must reasonably cooperate with the requests of employers that are reasonably related in some way to the operation of the company. As examples, if the employer requested the employee to (a) use time sheets or time cards, (b) refrain from using the office computers for personal purposes, (c) wash hands before leaving the lavatory if the work is in a restaurant, or (d) arrange for vacation time at least a month in advance, they would all be basic requirements of cooperation with an employer’s requests related to work.

It would not be reasonable to expect an employee to agree to matters unrelated to the operation of the company. As examples, an employee has no obligation to date the employer, or vacation with the employer, or engage in similar non-work-related activities.

Failure of an employee to provide reasonable cooperation with a reasonable, good faith request of an employer constitutes insubordination, which is legal grounds for firing “for cause,” to be avoided if at all possible.

3. Indeed, in many circumstances – including after a claim of discrimination has been filed – the employer has a legal duty to take steps to investigate and prevent any further improper behavior. If an employee claims she or he is being harassed, bullied, threatened, discriminated against or retaliated against, and the employer becomes aware of the claim, it then has a legal duty to look into the matter, and if appropriate, take steps to halt further misconduct. In turn, it is an employee’s duty to cooperate in these efforts.

If and when an employee files a complaint with a government agency about the conduct of the employer, it is entirely reasonable for the employer to investigate the matter, itself, at the same time. This is so that the employer can (a) make changes to avoid further harm or danger, (b) properly answer questions the agency might put to it, and (c) prevent further instances of what was complained of.

4. However, the employer cannot use a request for cooperation as a ruse to (a) intimidate, (b) humiliate, (c) retaliate or (c) pressure the employee to drop or change his or her filed complaint. The employer’s duty to investigate and the employee’s duty to cooperate both have limits: (i) reasonability and (ii) good faith.

The employer cannot insist that the employee sit down for 24 hours straight – without a break – to answer questions. The employer cannot ask the employee questions that are unrelated to the issue at hand, or that are embarrassing. The employer cannot make the employee undergo a polygraph – often called a lie-detector – test. Any such requests are unreasonable and suggestive of bad faith, and would likely represent an act of retaliation, and therefore should immediately be reported to both the EEOC and the employer, in writing, and in detail.

Feel you’ve been retaliated against? Use our “Model Memo Objecting to HR about Retaliation on the Job” to stop it and have it reversed. “What to Say, and How to Say It,™ just [click here.] Delivered by Email – Instantly!

5. Likewise, the employee cannot in this process ask colleagues to testify falsely or destroy documents; those would be equally unreasonable and improper. Such conduct by an employee during an EEOC investigation would be improper and a violation of law, as would an employer pressuring an employee to drop or amend his or her filed claim.

6. Direct communication between employee and employer during an EEOC investigation just might result in a negotiated settlement, assuming the negotiations were not mandatory or pressured. It is often the case that an employer approaches an employee who has filed an EEOC complaint and says, in one way or another, “Would you like to settle this dispute, and if so, how would you like to do so?” If the matter can be resolved that way, everyone is well-served, PROVIDED it is not a pressured negotiation, such as “Settle on these terms, or you are fired.”

It is for this reason that, almost always, once an EEOC investigation has begun, if the employer and employee agree on a settlement, the EEOC will insist on its right to approve the settlement, as a way of making sure it has not been coerced, and seems fair.

7. If the employee ever feels retaliated against, pressured, intimidated or otherwise pressured by an employer after the employee files an EEOC claim, a second, new claim of retaliation should be filed with the EEOC, which would be a more serious violation of law than is the originally claimed discrimination. If the employee believes that he or she is being treated badly in some fashion as a result of, in retribution for, or in retaliation for filing his or her original EEOC complaint, that should be brought to the attention of the EEOC immediately, in writing, for their further investigation.

Retaliation against an employee for exercising his or her legal right to file an EEOC complaint is a more serious violation of law than would be the discrimination, itself, and often results in greater penalties and jury awards.

It is for this reason that most employers try to avoid even the perception or appearance of bad treatment of an employee who has recently filed an EEOC complaint.

Lenore, sorry for the long answer, but the many nuances of this situation seem to require a step-by-step explanation in my response. As always, I hope this is information is helpful to you, and that the EEOC matter goes well.

My Best,
Al Sklover 

P.S.: If you are Suffering from a Bully Boss, we offer Model Anonymous Complaint to Your Employer About a Bully Boss, you can adapt and use. Shows you “What to Say, and How to Say It.” To get your copy, just [click here.] Delivered to your printer by email in minutes.

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