Last week we posted a comment from a reader (Gene Bone, Director of First Aid in Employment/Labor Problems at HR Bandaid in the Indianapolis area), who advised, based upon hisn own experience, that the best defense to an EEOC charge is “don’t use an attorney unless really necessary.”
As you can imagine, attorneys disagreed with this advice. We ourselves, although we represent employers before the EEOC, occasionally (and sparingly) recommend “going solo” for tactical reasons — but cannot quite embrace Mr. Bone’s universal approach. It may be self-serving, but generally having counsel has many more benefits that going it alone. Listen to these lawyers:
Sean Partrick, an attorney in Raleigh, NC wrote:
“I respectfully disagree with the “go solo” advise. My smaller clients may only get one or two EEOC charges filed over the span of five or ten years, so they are completely unfamiliar with the charge filing process, the response process, and the conciliation process. When presented with a demand at the conciliation process, they have no idea how to evaluate the claim or the value of the demand.
Often they are faced with an EEOC investigator who is biased and aggressive, who will not provide details as to the substance of any demand (particularly where the complaining party alleges an emotional damage component), and who will do their best to prevent any discussion that attacks the merits (or lack thereof) in the employee’s claim. These clients need lawyers who are familiar with the process and can help the client understand and evaluate the claims and exposure.
“Going solo” can also result in a heavy-handed settlement memorandum. I believe that some of my larger clients have enough experience to respond to a charge on their own, but even those larger clients will still discuss the response with me.
Also, when it comes to the conciliation process, even the larger clients will ask me to attend with them. If my experienced clients believe they need attorney representation with a response or in conciliation meetings, then it may be even more important for those smaller clients with little or no familiarity with the process.
Michael McClory, an attorney in the Portland, Oregon area:
” With all due respect to the individual in question, I disagree with a generalized strategy of not using counsel in responding to complaints filed with EEOC and state civil rights agencies. (Full disclosure: I am a management-side attorney and routinely do this kind of work. A strategy of not using counsel, if widespread, in theory would have a negative financial impact on my firm.)
While I agree that it makes sense to streamline responses to complaints, with directly relevant fact summaries, to me it does not make sense to respond without being fully cognizant of the legal implications of all submissions. Moreover, the “deny, deny, deny” approach strikes me as unhelpful. I do not want a blank canvas on which an investigator may paint freely; I want to block off those portions of the canvas that I can.”
Charles Krugel, a Chicago employment lawyer:
“Ditto to Michael’s comments. I will say that there are some claims that I’ve advised clients not to use me for. But that’s only after they’ve consulted with me about their particular circumstances.
I can’t recommend using a cookie cutter approach to responding to an EEOC claim any more than I can recommend using boilerplate or canned employment agreements or collective bargaining language.”