A reader advised last week that “the best defense to an EEOC charge is ‘don’t use an attorney unless really necessary.’” Is this good advice?
This simple comment brought in a torrent of other reader comments, some of which we published on July 1st. Based on our tallying of the comments, we have concluded that most commentators agreed (admittedly most were lawyers, but no matter) — at least at some point an employer needs legal advice. Most felt that employers who go before the EEOC unrepresented were doing themselves an injustice.
Michal Longfelder, an SF employment attorney:
“Excellent comments all around. My only addition is that my approach has been to involve outside counsel from beginning (when the charge is received) so that if litigation ensues, there are no surprises. While not quite the barber example, I have likened it to the wisdom of checking with your dentist when your tooth hurts a little instead of waiting until you need an extraction (no pun intended!).”
Dana Pearl, an EEO expert from the Chicago area:
“Bruce Friedman said it best [our July 1, 2014 blog post]. An employer needs quality representation. Having been an EEOC investigator, Director of HR, and a self-employed EEO consultant, I have seen too many situations where the employer’s counsel caused more problems than helped with solutions. In-house counsel isn’t always well-enough versed/trained in EEO laws, and some outside counsel are just too litigious and inflexible to really aid the employers.
Sometimes the best solution is to resolve the case early and for way less $$ than after years of contentious litigation.”
Kevin O’Connor, a trial attorney in the NYC area:
“Great topic. I’m publishing a piece in the DRI In House Quarterly in two weeks on this very hazard but looking at it from a trial lawyer’s perspective on the barriers to summary judgment and admissibility issues that surround EEOC determinations.
In some jurisdictions, a probable cause finding will preclude summary judgment and in some jurisdictions a probable cause determination is admissible. This is all the more reason why experienced trial counsel should be consulted at the inception with an eye toward going the distance if necessary. I do agree on the need to have counsel who is not inflexible or too litigious.”