CHARGE OF DISCRIMINATION: WHO INVESTIGATES AND HOW TO RESPOND
Every so often, we will receive a call from a concerned employer about a notice they received from the either the Nevada Equal Rights Commission (NERC) or the Equal Employment Opportunity Commission (EEOC). Unfortunately, the notice they received often informs the employer that a Charge of Discrimination has been filed against them by either a current or former employee. In assessing the charge with the employer, one of the first questions we get is: “who is actually investigating the Charge of Discrimination?”
The primary reason for the confusion is that when a Nevada employer receives notice that a charge has been filed against them, the employer is notified that the charge has been filed with both NERC and the EEOC. The two agencies, NERC (state agency) and the EEOC (federal agency), are both responsible for the enforcement of state and federal laws prohibiting discrimination in employment at the administrative level. Each has authority to fully investigate charges of discrimination, assist in resolving the charge through mediation, and issue a right to sue letter. Nevertheless, only one of agency is assigned to a specific case to process a charge.
Currently, NERC and the EEOC have a work-sharing agreement that provides a “dual” filing system. Generally, if a claim is filed with NERC and the allegation is covered by a law enforced by the EEOC, NERC will dual file the charge with the EEOC but will retain jurisdiction to process the charge. Conversely, if the charge is initially filed with the EEOC, and the charge also involves state or local law (in addition to federal law), the EEOC will dual file the charge with NERC, but will retain jurisdiction to process the charge.
As a result, employers in Nevada will generally find that whoever provides notice that a charge was filed against their organization, either NERC or the EEOC, they are the responsible agency for processing the charge and the employer should direct their responses to that agency.
What To Do If You Receive a Charge
The obvious second question we get from employers is “what do I do now?” While it is dependent on the agency handling the charge, the response is generally pretty similar.
If an employer receives notice from NERC of a pending charge, the first response by the employer is submission of the “Election of Response” form. In the form you are provided three different options: (1) provide a written offer to settle the matter, (2) participate in an informal settlement conference and the submit a position statement, or (3) waive the informal settlement conference and submit a position statement. Should the matter be remanded to investigation, the investigator assigned to the matter may make requests for additional information and interview available witnesses. If the investigator finds that the charge is supported by relevant evidence, the parties will again be invited to engage in mediation through the process of conciliation.
Similarly, the EEOC can require submission of a position statement, issue a Request for Information (RFI), request an on-site visit, and interview available witnesses. Further, should the EEOC find merit to the charge, the EEOC will invite the parties to engage in conciliation to resolve the pending charge.
The important takeaway for employers in Nevada is that they should never ignore a notice that a Charge of Discrimination has been filed against them. Upon receipt of a notice, the employer should immediately collect and preserve all relevant documents and information concerning the charge. Furthermore, if the employer has not already done so, investigate the claims made in the charge and begin to collect any information that can assist in defending against the charge.
Lastly, employers should ensure that their defense against a charge is adequately set forth in a well-drafted position statement. The position statement acts as a road map for the investigator and can assist in both the investigatory process and in subsequent litigation, if any.
If you have received a notice that a Charge of Discrimination has been filed against your organization, please contact the Nevada Association of Employers. Our experienced Nevada licensed attorneys can assist you through this process and provide legal representation to defend your interests.
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