Chiefs’ Counsel’s Corner
(continued)
company has an effective harassment prevention program in place.
Along with the initial steps to be taken upon receipt of the charge, it is also important to confirm
whether mediation is an option. The EEOC routinely offers to mediate charges; however, the
Commission generally will not mediate a systemic harassment matter. Thus, when an employer
representative calls an investigator to request a two-week extension in the response due date, it
may also want to inquire as to mediation. If mediation is not offered, then (in an always-courteous
tone) ask for the reason and make a formal request for mediation. If the request is denied, that is
an indication that a broader investigation may be underway.
Even if the charging party wants to mediate a settlement, the EEOC might still refuse and
proceed with a widespread investigation. According to a recent decision from the Seventh Circuit
Court of Appeals, “while a valid charge is a requirement for beginning an EEOC investigation,
nothing in Title VII supports a ruling that the EEOC’s authority is then limited by the actions of the
charging individual.” In that decision, the charging party had received a right to sue letter and
brought a civil suit that was dismissed on summary judgment. According to the court, even after
the dismissal, the EEOC retained the authority to continue its investigation of the charge. As the
“master of its case,” the EEOC can forge ahead in the public interest, with or without the charging
party’s interest. This decision provides more reason for employers to fully respond to the EEOC
with a defense of the company’s policies and practices and not to count on an early resolution of
all issues through the charging party.
According to the EEOC, there are five “core principles” in a harassment prevention program:
Committed and engaged leadership;
Consistent and demonstrated accountability;
Strong and comprehensive harassment policies;
Trusted and accessible complaint procedures; and
Regular, interactive training tailored to the audience and the organization
An employer may want to highlight the presence of these five principles in its harassment
prevention program in a charge response.
1. Committed and Engaged Leadership
The EEOC emphasizes that a respectful culture must be supported at the highest levels and that
this support should be clearly communicated to employees at routine trainings. According to the
commission’s harassment report, “the strongest expression of support is for a senior leader to open
the training session and attend the entire training session.” If an employer implements this practice,
it may want to highlight this fact in its charge response. Similarly, if there were a training slide with
a statement of support from the organization’s CEO or some other senior executives, or a memo
from senior management expressing support for the company’s anti-harassment policy, an
www.gachiefs.com • Page 25 • 1st Quarter Newsletter