EEOC INVESTIGATIVE METHODS 

The EEOC will use one or more of the following methods in investigating charges. The methods are: 

Interviews 

The Equal Opportunity Specialist conducting the investigation will probably want to interview:

• the charging party,
• the respondent (or the respondent's representative), and
• witnesses identified by the charging party.

Interview outlines. Interview outlines are an important part of the procedure. The interview outline is prepared by the Equal Opportunity Specialist and lists the issues to be resolved or clarified. Under each issue, it is recommended that the EOS list, in logical order, the series of questions that he or she will pose. Also, it is important that the EOS ask interviewed witnesses about the availability of documentary evidence that might support the witness's testimony or disprove other conflicting testimonial evidence.

Respondent interviews. Most employee interviews are conducted at the respondent's worksite at a time and under circumstances that result in minimum interference with the respondent's business. However, there are times that the respondent will refuse permission to conduct onsite interviews. When such permission is denied, it is acceptable to conduct the interview at an EEOC office, at the witness's residence, or at any other suitable place in the community, such as a Post Office building. Witnesses who prefer to have their identity protected should not be interviewed at the respondent's facility unless they consent. 

Employer conduct. You, as the employer, should cooperate totally in the interviewing process. Arrange for a private office with appropriate seating. The office should have a phone. Under no circumstances should you in any way interfere or attempt to intrude on the interviews. However, you may record who comes and goes from the office, the apparent length of meetings with individual(s) and the working time of the investigator. 

Generally, as a matter of form, representatives of the EEOC will refuse free lunches. If it is your company's pattern to provide coffee and access to a cafeteria for guests, you should advise the EOS of that fact. 

Right to an attorney. It is a respondent spokesperson's right to have counsel present during his or her own interview or during the interview of management employees. Under no circumstances, though, is the EOS to allow the respondent's spokesperson or attorney to be present during the interviews of nonmanagement workers. It is generally encouraged that counsel be present. 

When it is not possible or practical to interview a witness in person, the EOS may conduct the interview by telephone or mail. 

Witness statements that affirmatively support a cause/no cause determination or a violation/no violation finding will be recorded in affidavit form. The EOS does not use any electronic recording device to record information furnished by the witness. 

Administrative Subpoenas 

Requests for information may be backed up by the issuance of an administrative subpoena, but a subpoena will not be issued unless the documents or records or testimony of witnesses are actually required to make an appropriately reasoned determination. It must also be clear that adequate time has been provided for compliance with a specific request and that the person has failed to comply with the request. 

Relation to charge. The Commission's subpoena authority is broad, despite the statutory limitation that evidence and testimony subpoenaed must be relevant to the charges filed. Large amounts of evidence may or may not be subpoenaed, depending on how a court views its relevancy to the charge filed and the EEOC's responsibility to redress discrimination. The relevancy of the requested information to the charge at hand need not be determined initially by the issuing officer. 

Charges, either those of individuals or a Commissioner, that allege or appear to allege a pattern or practice of discrimination, permit a somewhat broader scope for the subpoena of evidence. The greater scope is required because, without going beyond the specific incident affecting a single aggrieved person, it would not be possible for the EEOC to ascertain whether an employer was engaged in a discriminatory pattern or practice.

If a respondent is unwilling to provide certain information on the first request, the reason is to be elicited and alternatives discussed. If it later is clear that there is no other evidence available to provide the requested information, the respondent will again be advised that the document or other evidence is absolutely necessary for a fair investigation. 

Respondents who resist because of a belief that the EEOC is the advocate of the charging party are advised that the Commission seeks all relevant information, including evidence that does not support the charging party's allegation. After both the specialist and supervisor from EEOC have attempted to convince the respondent to comply voluntarily, a recommendation for a subpoena will be made. 

Types of administrative subpoenas. There are three kinds of administrative subpoenas within the authority of the EEOC:

• a subpoena for testimony addressed to the person whose testimony is sought;
• a subpoena for documents addressed to persons who have the documents in their possession or control; or
• a subpoena for access for inspection addressed to persons who have control over evidence. 

Witnesses subpoenaed are paid the same fees and mileage as witnesses in federal court. Where documents are subpoenaed, the party being subpoenaed generally pays the costs of copying and compiling the requested records. Exceptions may be made, however, if the party subject to the subpoena can show that compliance with the subpoena would be unduly burdensome. Generally, employers are required to absorb the costs. 

Scope of EEOC subpoena power. The EEOC's authority to compel the production of evidence via administrative subpoena extends not only to evidence already existing in documentary form, but also to information that must be gathered. 

Appeal procedure. The person who receives a subpoena from the EEOC may petition the General Counsel, within five days of service, to modify or revoke the subpoena. 

Enforcement. When a person fails to comply with a subpoena, the Commission is authorized to seek the assistance of federal courts under the provisions of the National Labor Relations Act using the contempt of court procedure. A valid charge of discrimination, i.e., a charge that meets all statutory and regulatory requirements, is a jurisdictional prerequisite in subpoena enforcement proceedings. However, it is not necessary for the Commission to supply evidence that the charge upon which the subpoena is based has merit before an EEOC subpoena can be enforced. 

Release of information by EEOC varies by law. Title VII states that material provided to the EEOC during an investigation cannot be made public by the Commission on pain of prosecution. The phrase shall not be made public has been construed by the U.S. Supreme Court to refer to all members of the public except the parties to the agency proceeding, which includes the charging parties. 

The EEOC also has the power to issue subpoenas in its enforcement of the Equal Pay Act of 1963 and the Age Discrimination in Employment Act of 1967. Under the Equal Pay Act, only members of the Commission may issue subpoenas, and there is no right of appeal to the Commission from the issuance of a subpoena. The EEOC may seek judicial enforcement of subpoenas issued under the Equal Pay Act. 

Subpoenas under the Age Discrimination in Employment Act may be issued by EEOC offices as well as by the full Commission. There is no right of appeal to the Commission from the issuance of such subpoenas. As with the Equal Pay Act, judicial enforcement of ADEA subpoenas may be sought under the Federal Trade Commission Act. The EEOC's authority to act under these statutes has been challenged. 

Examples. The following are actual examples of EEOC requests for information illustrating the breadth and depth typical of such requests.

• A demand, based on a charge alleging discrimination against a class, for evidence on all entry level jobs for a five-year period.
• Current personnel records for all union members, including applications for membership and listing of membership by race and job classification.
• All persons hired as sales clerks including persons presently so employed with pertinent personnel data concerning them, EEO-1 forms, and any additional relevant material.
• Names of applicants for union membership, current membership and work permit lists, names of union officials, copies of bylaws and constitution, copies of minutes of board, dispatch records for previous six months indicating membership status of dispatches, and welfare and pension records.
•  Disciplinary records for named persons and their personnel files. Payroll records for named persons including layoff, severance or termination pay, and those for other salaried personnel who left employment.
• Formal job descriptions for nonsupervisory personnel in one company division and personnel files for such persons, copies of paycheck stubs and computer printouts showing method of computation of each employee's pay.
• Union records of seniority rights, job dispatching, and minutes of union committee meetings on seniority, all as they relate to women.
• Personnel records relating to editors and editor-assistants, including applications, performance, attendance, wage rates and reclassification, job descriptions for specific editor and editor-assistant jobs.
• Identity of the interviewer of a particular job applicant and the race of person interviewed.

Company response. With counsel's approval, the company should fully cooperate with the subpoenas. Make two exact copies of all records and information provided to the EEOC. Keep one record for your file. Review that information as you believe the EEOC will based on all you know of the charge. If there is additional information needed to clarify a point or support your position, include the information in your response to the EEOC.

Onsite investigations 

Onsite investigations may be approved by EEOC Unit Supervisors whenever it appears that such an investigation will enhance the probability of obtaining a complete and balanced evidentiary record. 

Investigative help. The Commission's procedural regulations provide that the Commission will make its own investigation, but that it may utilize the services of state and local fair employment practices agencies or of appropriate federal agencies and, to the extent that it is relevant, may use information gathered by those agencies. 

There is no requirement that the EEOC adopt the findings of a state agency. Also, the conduct of an investigation after one has been entered into by a state agency may not be unduly repetitive. 

Onsite investigations will be scheduled so that they result in only minimal disruption to a respondent's business operations. If a respondent refuses to permit such an investigation or attempts to delay the investigation for a long period of time without an overwhelming business need for the delay, the EEOC is empowered to seek an access subpoena. 

As with interviews and subpoenas, cooperate fully with the EEOC if there is a request for an onsite visit. Ask exactly what areas they wish to tour and what other sights they wish to see. 

During an onsite visit, the Equal Opportunity Specialist will usually request a plant tour. The plant tour gives the specialist a general understanding of the company's operations and how the job or jobs under review fit into the overall flow of work. The tour also gives the EOS the chance to observe the impact of the employment policies under review on individual employees in the workplace. 

Onsite investigations will include a tour of the aggrieved person's worksite and may include a look at applicant-interviewing facilities and other areas beyond the aggrieved person's worksite where a broad charge of employment discrimination is being investigated. 

The EOS should be accompanied during the tour by a company representative who knows the overall plant operation and the general distribution of work among the various departments and jobs. Select this individual carefully. You may be best served, assuming the knowledge level, to do the tour yourself or appoint an individual who has no knowledge of the reason for the onsite. Be sure to debrief the guide after the tour is over. 

Negotiated settlements 

In its efforts to help the parties involved find an early and reasonable resolution of charges whenever possible, the EEOC has established a negotiated settlement procedure. 

Before a determination is issued whether there is reasonable cause to believe that an unlawful employment practice has occurred or is occurring, as charged, the Commission may encourage the parties to settle the charge in terms that are mutually agreeable. Notice may be required before any charge is made affecting the agreement. If a settlement is negotiated, it can be signed by the District Directors and other designated officials. 

A negotiated settlement should note that the Commission has made no judgment on the merits of the charge. 

Acceptance of the benefits of a conciliation agreement negotiated by other agencies may bar a claimant from pursuing similar claims under other legislation. 

Confidentiality of data. Information supplied to the EEOC during negotiations to settle a charge is to be treated as confidential and cannot be furnished to a charging party along with a letter of determination.

Collection and analysis of evidence 

Collecting and analyzing evidence is a very important part of any charge investigation. By collecting and studying respondent records, investigators can determine coverage under the applicable statutes, whether an initial showing of bias exists, whether a respondent's stated defense (e.g., business necessity, bona fide occupational qualification, etc.) is valid, whether intentional discrimination or adverse impact exists, and whatever appropriate remedial actions might be appropriate. 

Evidence. Evidence is of three basic types: 

• Documentary evidence (written evidence that is generated during the course of normal business activity) will be obtained by written request for information (RFI) that is sent to the respondent.
• Testimonial evidence is information given orally.
• Statistical evidence may be gathered to buttress documentary and testimonial evidence that discloses that members of a protected class have been treated differently than have nonclass members. 

Some examples of documentary evidence are: 

• payroll records,
• records of interstate receipt and shipment of goods,
• seniority lists,
• testing records,
• union membership lists, and
• personnel department records (automated or manual).

Reprinted with permission. © CCH