HR Focus: Failure to Take EEOC Investigation Process Seriously Can Have Grave Consequences for Employers

Volume 2, Issue 9
July 21, 2003

When the Equal Employment Opportunity Commission ("EEOC") investigates a charge of discrimination, its efforts are usually met with a high level of frustration, and sometimes unresponsiveness, on the part of employers. Many employers consider the EEOC investigation to be nothing more than a costly and time consuming nuisance; mistakenly believing that it need only be concerned if and when a charge of discrimination leads to litigation. However, indifference at the EEOC investigation stage can lead to serious repercussions down the road.

At the conclusion of its investigation, the EEOC may determine that there is "probable cause" to believe that discrimination did occur, resulting in the issuance of a document called a "probable cause determination." Once the determination is issued, if a settlement is not reached, the EEOC may either litigate the case itself or issue a "right to sue" letter to the charging party. In either case, the probable cause determination becomes an important weapon for use against employers as it is admissible as evidence to support a plaintiff's claim of discrimination. In other words, the judge and/or the jury gets to hear that the Equal Employment Opportunity Commission, an agency of the United States Government specializing in enforcing the nation"s most important workplace anti-discrimination laws, believes that there is probably cause to conclude that your company discriminated against the plaintiff. Those are very powerful words and ones that an employer will have to convince a judge or jury to disregard.

While many federal courts have found that the EEOC's probable cause determination can be excluded as evidence under certain circumstances, the United States Court of Appeals for the Ninth Circuit, which has jurisdiction over Nevada, has ruled that the EEOC's probable cause determination is absolutely admissible as evidence in discrimination cases. In other words, the determination can be used as evidence against an employer no matter how flawed or inaccurate it may be. See Plummer v. Western Int"l Hotels, 656 F.2d 502, 505 (9th Cir. 1981). Indeed, the Ninth Circuit Court recently upheld its position on the use of EEOC determinations in Coleman v. Quaker Oats Co., 232 F.3d 1271, 1283-84 (9th Cir. 2000), finding the probable cause determination was "required" to be admitted despite the finding that it had "little probative value."

Based on the Ninth Circuit Court's position on the use of EEOC determinations, an employer faces the unenviable task of convincing a judge or jury that the EEOC should not be believed. Thus, the best course for employers is to try to make sure that a probable cause determination is never issued. Obviously, there will be circumstances where no matter how cooperative an employer is with the EEOC, the facts will still result in a probable cause determination. However, if employers' give serious time and attention to the EEOC investigation process, they will be better equipped to refute a plaintiff"s allegations and prevent the issuance of a probable cause determination.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.