The point that many employers fear - receiving a complaint from the Iowa Civil Rights Commission. An employee has alleged that they have been a subject to discrimination in your workplace.
Last week, we covered the initial complaint. What employers receive, what you need to return to the ICRC and by when. This week, we are looking at the outcome of that initial action, the Initial Determination.
Multiple things might happen once the Iowa Civil Rights Commission makes a preliminary screen-in determination (it’s been accepted after the initial review).
In many instances, the Commission may administratively close the claim. That doesn’t mean there was no discrimination or that the claim has no merit or value. It is an assessment that the Commission does not care to incur additional time, expense, and cost to further evaluate the claim.
Administrative closure decisions will make some preliminary assessments regarding facts and documentation provided. A Complainant may request that the administrative closure be reviewed, essentially requesting an appeal or receive a right-to-sue letter which would enable the Complainant to file the case in the court system. Many cases receiving an administrative closure simply end at that time, although a right-to-sue letter can be requested up to two years from the time of the administrative closure. An administrative closure is a success on the part of the employer, it means the employer demonstrated to the Commission that there was a solid foundation for whatever decision the employer made.
If a case is screened-in for further investigation, this, like the administrative closure, is not a determination as to whether discrimination occurred. Typically, an investigative screen-in will come with an analysis from the Iowa Civil Rights Commission about the legal elements of the claim, as well as the factual documentation and other items produced.
Often, the case may be screened-in for further investigation as it has been difficult for the Commission to make any kind of preliminary assessment regarding the believability of certain witnesses or components of the claim. It may also occur because additional documentation is needed or because the Commission has a belief that discrimination is likely to exist and needs to pursue the case further. As noted, the need to make credibility determinations drives a number of the screened decisions. The Commission cannot make credibility determinations absent interviewing witnesses.
At the time of the investigative screen-in, the parties will be offered the option of a no cost mediation through the Iowa Civil Rights Commission. The Commission assigns a mediator, typically a Commission employee, to manage the mediation. A mediation would occur within a very brief time period. Mediation is non-binding and if the parties do not reach an agreement, the case simply moves forward through the investigative process or the Complainant can request a right-to-sue letter.
Employers, very rarely enter into mediation without the intent of providing the Complainant money. Some employers feel strongly about the case and do not wish to provide any settlement amounts to a Complainant. If you are not willing to pay something, you probably should not be in mediation.
If the case is not mediated, it is likely the employer will subsequently receive a follow-up letter from the Iowa Civil Rights Commission requesting not only a response to the screening analysis, but also multiple additional documents that the Commission believes are needed. This list can be comprehensive as well as duplicative. Many of the documents requested may already have been provided to the Commission.
Typically, the employer has 30 days to respond to the request. Such a request is standard for all cases moving forward through investigation interviews. Once the Commission has received additional documentation as requested, typically the assigned investigator will schedule interviews with key witnesses.
Managerial employees are typically interviewed with counsel present and address the fundamental inquiry relating to the claim itself. Co-employees, those who are in non-managerial positions, will frequently be contacted directly by the Iowa Civil Rights Commission, co-employees do not have the same requirements as managers do.
Employees may come to you saying that they have been contacted and ask what to do. You should always encourage employees to be truthful and accurate in any responses that they make. You should not impede the employee’s ability to participate in investigations.
If an employee is accidentally identified as a co-employee and is in fact management, those employees should come to you as the employer so the interviews can be properly managed with counsel.
Completion of Investigation
After all interviews are completed, the Commission will assess the claim and determine whether there is no discrimination, a finding of “no probable cause.”
Alternatively, the finding would be discrimination, which is a finding of probable cause.
If there is a “no probable cause” determination, the employer will simply do a happy dance, although the Complainant may seek to appeal this matter.
If there is a finding of probable cause, the matter will proceed to conciliation, another form of mediation. This will be an attempt on the part of the Commission to try to resolve the claim prior to any form of litigation. It is a back and forth process, typically done on the phone, but if conciliation fails, the Commission will then make the determination as to whether or not the case should go forward into litigation.
Note, that in conciliation the state is now a party to the action and various non-monetary relief may be required by the Iowa Civil Rights Commission in addition to money damages. In some instances, these types of requests may also be demanded in an earlier mediation process. This can include policy changes, training of employees, and generally includes reporting back to the Commission that certain elements have been met, including Commission approval of any training programs. After a probable cause finding, the case belongs to the state.
Next week, we will look at a few of the additional considerations employers should pay attention to as they respond to an ICRC complaint to protect their rights and lessen their risk of further litigation related to retaliation.
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