7 minute watch | December.20.2024
Join Erin Connell and Esther Lander for advice on:
| Erin Connell: | So, Esther, you used to be with the Department of Justice. |
| Esther Lander: | I did. |
| Erin: | Based on that experience, coupled with your experience representing employers, what would you say are some best practices for employers when facing a systemic discrimination investigation? |
| Esther: | I'm going to share two, Erin. The first is don't treat a government investigation like civil discovery. Investigators are unimpressed, and it does not move the needle to litter responses to requests for information with a bunch of general objections to the form of the question – vague, ambiguous, the investigator doesn’t care. My approach with my clients is to always try to be as cooperative as possible and to provide the investigator with what we know the investigator actually needs in order to find no discrimination, or at least to neutrally and fairly investigate the charge, rather than what the investigator has actually asked for. My second practice pointer would be when it comes to systemic investigations and data requests, always have your own consulting expert analyze the data that the government has requested. This way, when you produce the data, there's a story to tell with it. And provide a position statement along with the data that explains the way the data should be analyzed, the way the courts would analyze it, and what the data shows. That often requires a lot of work behind the scenes to figure out the best way to package the data to tell the best and most persuasive story, to hopefully lead the agency to the conclusion that there's been no discrimination. |
| Erin: | Those are two great pieces of advice. |
| Esther: | And if it doesn't work out, we speak about how we can move to resolution more quickly. Actually, there's one more that I also want to share, Erin. Government agencies often have their own authority that govern their investigations. For example, the EEOC has on its website chapters of the EEOC compliance manual. EEOC investigators are not persuaded by citing a bunch of case law. So whenever we write position statements on behalf of respondents, to the greatest extent possible, we rely on the actual enforcement guidance and opinion letters, whatever it is from that agency that they have made publicly available, as your authority in defending against that investigation, rather than citing court cases, because the agency is most persuaded by their own materials. How about you, Erin? What kind of best practices do you incorporate into your government investigations? |
| Erin: | So mine are similar to yours. I would say there are really four things that come to mind. Number one is to try to develop a rapport with the investigator. There are a lot of reasons for this, one being that when they are serving you with very broad and burdensome data and document requests, you want to be able to negotiate those down if you can. Because there's no court overseeing the process, as you know, and you can't just resort to saying no, go file a motion to compel, as we would in litigation. The second thing that I would say is to figure out a way to affirmatively demonstrate that no discrimination is happening. In contrast to civil litigation, where we often are more comfortable taking the approach that the plaintiff has the burden of proof, here you are uniquely motivated to bring this to a successful resolution with no adverse findings. So I think it is important to figure out a way to affirmatively prove no discrimination. The third thing that I would say is to know the procedural rules that are governing your particular investigation, because you can really use them to your advantage. For example, if the investigation is getting incredibly broad and burdensome in a way that it should not, you can use the procedural rules to rein it in. Or if the agency is attempting to utilize some type of procedure, such as a PMK deposition, that might not be available in a particular investigation, you can point that out and they will back down if they agree with you and if you've got the procedural rules right. And then the fourth thing that I would say is to always remember to create a favorable written record. That can be everything from how cooperative you've been, all of the data and documents that you've produced, how the agency should be interpreting those data and documents, your substantive positions, and if you think that the agency has done something wrong in violation of the procedural rules or otherwise. You want to make sure that you have a written record for that reason as well. So those are really the four things that I can think of in terms of best practices. |
| Esther: | And to piggyback on that last point, I think that's a great callout, because at some point in an investigation, if things are going south, knowing the agency and who the operators are at the agency.... It's not the investigator who's making the decisions; it's someone potentially layers above that person. So having that really good record, in case you have to go over the investigator's head to escalate a matter if the investigation for some reason doesn't seem fair or balanced, is critical. |
| Erin: | I agree, and it is also helpful if you find yourself in litigation, which I have. We did exactly what I just described. We made a very good written record during the investigation, and then when we were in litigation, there are some defenses, procedural defenses, that you can bring in litigation based on the investigation. Having that written record was critical. So there are a lot of reasons why you really do essentially want to paper things during the investigation. |
| Esther: | Yeah, and I've had a similar situation. You know, laches is actually an argument that can be used against the government when the government just takes years and years to investigate a charge. |
| Erin: | That happens often. |
| Esther: | Especially in the systemic ones. So having a record of all the pauses where you don't hear from the agency for a year or two and documenting that is really helpful to establishing that defense, for example. |
| Erin: | Yes, I agree, and I have done that exact thing myself. |