In 2016, the Equal Employment Opportunity Commission (EEOC) implemented Phase I of its Digital Charge System for employers to interact with the EEOC thru a Respondent Portal, and to access and respond to a Charge of Discrimination. If a Charge of Discrimination has been filed against your company, the EEOC now e-mails the Notice of Charge of Discrimination to employers and provides a password to access the online portal. When you log in, you can view and download the Charge and add your attorney’s contact information and provide him/her access to the Respondent Portal. You or your attorney also can respond to a mediation request, change contact information, and upload a position statement.
If you haven’t provided your preferred e-mail address to the EEOC, the EEOC sends its electronic notice of the Charge to the employer’s e-mail address that it currently has “on file.” Hey- what does that mean? According to Michael Farrell, EEOC’s Miami District Director, the agency purchased lists of corporate e-mail addresses, and will use those addresses as the foundation to tailor its own specific database for e-mail addresses. If an employer is not part of that mailing list, the EEOC also looks online to find the employer’s HR Department’s e-mail address and/or contacts the employer directly to confirm the e-mail address.
So, you’re probably wondering, what happens if the Charge is caught in your spam filter or is addressed to the wrong person or a former employee whose e-mail isn’t being checked? Under those circumstances, the EEOC won’t know that you haven’t received the Charge. If you don’t want to risk the wrong person in your company being e-mailed with the Notice, Director Farrell encourages employers to provide the agency a correct e-mail address for future charges. Such information for charges filed within the Miami District (i.e., Florida [Leon County and East of Leon County] and the Caribbean), should be sent to email@example.com. Also, employers may specify that the address being provided is for national service of EEOC charges. The Miami District will forward any such notices to their Headquarters for national distribution.
Any information a user enters into the EEOC Public Portal is password protected and not available for viewing by employers or the general public. Even if an employer is aware of the allegations of a Charge, the Charge itself and additional EEOC instructions can only be viewed by accessing the portal. Each matter also is given a unique password (which an employer can change once it logs into the portal). As a result, employers should regularly monitor the e-mail address on file with the EEOC, and take measures to ensure that e-mails from the EEOC are not routed into spam folders. (Note: automated e-mails from the EEOC’s portal will generate from firstname.lastname@example.org.) In addition, Director Farrell encourages employers to consider setting up a general e-mail address for incoming EEOC correspondence (e.g., EEOC@yourcompany.com).
Don’t worry if you haven’t provided the EEOC with the proper e-mail address yet. Other safeguards exist to help ensure that employers are properly served. Notably, if the EEOC e-mails an employer and doesn’t hear back within 10 days, the agency will attempt to re-serve the Charge or contact the employer by phone.
I understand some of you are thinking, “Lisa, we’re still a little reluctant to reach out to the EEOC and provide our e-mail address.” The EEOC has assured that providing proper contact information doesn’t affect the likelihood of your company being sued. It may actually help you in the long run. Therefore, I suggest employers consider being proactive in providing the EEOC contact information for several reasons:
- The sooner you learn that an employee/former employee/applicant has filed a Charge of Discrimination against your company, the sooner you can commence an investigation. If the Charge involves a current employee, you might be able to resolve the situation before it ends up in litigation.
- Generally, an employer has 30 days to respond to a request for a position statement. A delay in receiving the Notice of Charge could result in less time to prepare the position statement. (You or your counsel could request an extension, if needed, although not always granted.)
- If you don’t receive timely notice of a Charge filed by a current employee, you might take an adverse employment action that could be construed as retaliation.
Don’t play hide and seek (well, at least not with the EEOC). Provide the EEOC with your contact e-mail address. The Charge is being served, regardless of whether you cooperate, so it’s better to be prepared at the earliest opportunity.