The conversation continues on whether a company needs or should retain an attorney to represent it before the EEOC. Where better to mine the views of employment attorneys than the LinkedIn group run by the ABA Employment Committee?
As expected, lawyers are virtually unanimous in saying that, at a minimum, an attorney should initially be consulted when a charge is files, and that a company is well advised to be represented by an attorney.
Maritza Gomez Fernandez, an attorney in the Miami-Fort Lauderdale area:
“As a former EEOC Trial Attorney, to me going solo before the EEOC is not a good advice at all. Whatever an employer says during the EEOC process will follow that employer all the way to litigation.”
“For a business to go into the ring unrepresented is a Bad Idea. Always. They are leaving themselves wide open to stepping right up in it. But I’m on the employee side, so go for it. ;)”
Mary Harokopus, an employment lawyer, Dallas/Fort Worth area:
“As well as providing legal advice regarding the EEOC process; content of submissions; etc., it is often helpful to be familiar with the particular investigator(s) involved in the matter in order to tailor submissions and discussions accordingly. Lawyers who work in this arena on a regular basis are often familiar with the various EEOC offices and are invaluable for that purpose. Once it is realized that counsel would have been a good idea, it could be too late.”
William Deveney, an employment lawyer in the Atlanta area:
“I would also add that with the EEOC’s recent legal challenges to even the most basic of terms contained in settlement agreements for employment cases, unless a client is being represented by in-house counsel with knowledge of the usual parameters of those kinds of agreements, I think it would be better to have counsel there.”
David Krchak, an Urbana-Champaign, Ill. area attorney:
“This seems a little like asking your barber if you need a haircut.”
Kailee Goold, an employment lawyer in Columbus, OH:
“Love the barber comment by David! But I agree that employers should at least consult with an attorney when a Charge comes in the door. Costly mistakes are too easy to make. A good attorney will find efficient + effective ways to make a positive impact.”
Sandra Blevins, an Indianapolis area employment attorney:
“I represented employers for the first 7 years of practice, and I have been representing individuals/plaintiffs for the past 11 years. Here’s why an employer may want to have an attorney at the EEOC: Everything the employer says to the EEOC will likely be discovered when a lawsuit is filed by the plaintiff and used in depositions, on summary judgment and at trial. A good plaintiff’s attorney will request the EEOC file, and a smart employer will engage quality counsel to represent them at the EEOC stage.”
David Gabor, an attorney in Boston:
“There appears to be a happy medium. True, companies need to consider costs and some EEOC (or state agency responses) can be costly. At the same time, that cost pales in comparison to the costs resulting from an improperly drafted response.
My concern is that savvy plaintiff’s counsel will look for mistakes in the response filed with the EEOC. That being said, these attorneys will undoubtedly seize on any opportunity to prove that a proffered reason for adverse action is false.
So, that middle ground could be for the employer to draft the response subject to a careful review by counsel to ensure that no exposure has been created.
I also agree that there are instances where it does not make sense for the employer to draft the response at all. For example, when there is a risk of a collective action.
One question, where does the investigation fit into this process? Should we make sure that the “ee’s” complaint is being investigated?”
Bruce Friedman, Senior Policy Advisor – Office for Civil Rights and Civil Liberties, U.S. Department of Homeland Security, Wash., DC area:
“Here’s my two cents. I previously both investigated and litigated employment discrimination complaints for the government and reviewed and approved proposed litigation memoranda and settlement proposals. I believe it pays to have legal representation assuming its quality legal representation.
Unfortunately, quality representation is not a given. Quality legal representation may be behind the scenes (through providing advice to the client) or through direct representation. Quality representation will help ensure that the client is cooperative (as appropriate) and responsive. It prevents non-answers. It can prevent subpoena enforcement. It can prevent burdensome document requests that overreach, burdensome interview requests that interfere with business operations, a misreading of the evidence against the employer, and overreaching settlement proposals that suggest there can be no disagreement about whether a violation occurred and if so, the results of such violation. Quality representation can frame a case for the government in such a way as to make clear that the evidence simply doesn’t support a finding of a violation, through a nice legal analysis supported by evidence.
Don’t underestimate the power of such a presentation to help the investigator look smart and thorough to his or her supervisor. Poor representation or no representation can, at times, lead to drawn out proceedings, unnecessary subpoenas and complaint filings, and payment of excessive legal fees, among other things.”
And finally, Paul M. Nordsletten, an employment lawyer who writes the “Washington Labor Law Law Blog,” wrote directly to us:
“I agree with these comments. (I, too, am a management-side attorney who routinely handles agency responses.) I see employers going it alone often focus on the wrong facts and issues. They often boldly assert they would never violate any law and express outrage at the charge; personally attack the charging party; omit the facts that will evidence the legitimate basis for the their actions; focus only on the charging party’s allegations or agency questions and not on other facts that would help them; and completely miss key legal principles like the “same actor” defense.
Also, many non-attorneys and clients are clueless about the obligations regarding collection and preservation of electronic documents. If not done right at the outset of the charge, the consequences can be catastrophic for an employer in any litigation.
On the other hand, I think the approach many attorneys take, to essentially prepare a brief in support of a motion for summary judgment, is flawed. Those responses are both unpersuasive to the average investigator and too costly. I think the most prudent, and cost effective approach in the long run, is to consult with an experienced employment attorney who has dealt with agencies
a lot and can do a thorough job cost-effectively.”
Richard Seymour, a Wash., DC attorney:
“I normally represent employees, and have recently learned that some EEOC offices are telling charging parties that they, too, should not contact counsel until the agency issues a Notice of Right to Sue.
Given the problems the EEOC has with intake, and the difficulties some charging parties have had with the EEOC forgetting to include a retaliation or harassment count in the charges they draft for charging parties, this is appalling advice to a charging party. There is no legitimate justification for the EEOC’s assertion of an agency interest in whether either party retains counsel, other than to assist in covering up agency shortcomings.”