The EEOC's New Investigative Tactics

June 12, 2014

The need to adequately and thoroughly investigate and respond to a charge of discrimination filed with the Equal Employment Opportunity Commission (EEOC) has always been important in defending against accusations made by a current or former employee. That need has become even more critical given new tactics that are being used by EEOC investigators which may prejudice employers. Recently, the EEOC District Office in Atlanta began tape-recording statements of employer witnesses. Investigators may seek to tape-record statements under oath so that the interview is like a deposition. At least one investigator has surreptitiously recorded witness interviews, without prior notice to the employer or witnesses. Notably, investigators are not recording statements of charging parties. These tactics may be quite dangerous for employers. Establishing the facts regarding the company's conduct and its credibility is crucial in the investigative stage. Ensuring that the company's reasons for taking the adverse action of which the employee complains is airtight is a critical step in warding off a cause determination and/or either the EEOC or a plaintiff's attorney taking an interest in litigating the case after the investigation is complete. A recorded witness interview is a problem because it raises the risk of a misstatement that can be later used to undermine the company's defense to the charge or a subsequent lawsuit. In the event an employee files a discrimination lawsuit, the recorded statements will likely be obtained by the employee. An employee's attorney will use the recordings against the company and to cross-examine witnesses to show that the company's version of the facts is inconsistent with prior statements. Since witnesses are generally not as well prepared for an investigation as they may be for depositions, inadvertent mistakes may occur which will be detrimental to the employer. The result of the EEOC's practice is that employers must be more cautious about allowing witnesses to testify. Witnesses who will be recorded must be prepared as if they are going to be deposed in a lawsuit. Employers may need to have their attorneys involved in EEOC investigations at inception in order to ensure the process is fair and to protect the witnesses and company. Employers have the right to negotiate the investigation process with the investigator. If the investigator insists on recording statements, employers may consider refusing to participate in the process unless ordered to do so by a federal judge. In recorded interviews, the employer or its attorney will need to object to questions and ensure that the testimony is complete and accurate. For further information or with any questions, please contact Randy Gepp at rgepp@taylorenglish.com or 678.336.7197.

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