Investigations - What an Employer Should Know
What is the Human Rights Commission?
- The Human Rights Commission (HRC) is an independent county agency created by Board of Supervisors in 1964 to eradicate discrimination in employment, housing public accommodations, education and credit. The Fairfax County Human Rights Ordinance prohibit employment discrimination on the basis of race, color, sex, religion, national origin, marital status, age, familial status, or disability.
- HRC has authority to receive, initiate and investigate charges of discrimination filed against employers who have a statutory minimum number of employees.
- HRC's role in an investigation is to fairly and accurately evaluate the charge allegations in light of all the evidence obtained.
What happens when a charge has been filed against me?
- You will always be notified that a charge of discrimination has been filed and you will be provided with the name and contact information for the investigator assigned to your case. A charge does not constitute a finding that your company engaged in discrimination. The HRC has a responsibility to investigate and determine whether there is a reasonable cause to believe discrimination occurred.
- In many cases, you may opt to resolve a charge early in the process through mediation or settlement. At the start of an investigation, HRC will advise you if your charge is eligible for mediation, but feel free to ask the investigator about the settlement option. Mediation and settlement are voluntary resolutions.
During the investigation, you and the Charging Party will be asked to
provide information. Your investigator will evaluate the information
submitted to determine whether unlawful discrimination has taken place.
You may be asked to:
- submit a statement of position. This is your opportunity to tell your side of the story and you should take advantage of it.
- respond to a Request for Information (RFI). The RFI may ask you to submit copies of personnel policies, Charging Party's personnel files, the personnel files of other individuals and other relevant information.
- permit an on-site visit. While you may view such a visit as being disruptive to your operations, our experience has been that such visits greatly expedite the fact- finding process and may help achieve quicker resolutions. In some cases, an on- site visit may be an alternative to a RFI if requested documents are made available for viewing or photocopying.
- provide contact information for or have employees available for witness interviews. You may be present during interviews with management personnel, but an investigator is allowed to conduct interviews of non-management level employees without your presence or permission.
If the charge was not dismissed by the HRC when it was received, that
means there was some basis for proceeding with further investigation.
There are many cases where it is unclear whether discrimination may
have occurred and an investigation is necessary. You are encouraged to
present any facts that you believe show the allegations are incorrect
or do not amount to a violation of the law. An employer's input and
cooperation will assist HRC in promptly and thoroughly investigating a
- Work with the investigator to identify the most efficient and least burdensome way to gather relevant evidence.
You should submit a prompt response to the HRC and provide the
information requested, even if you believe the charge is frivolous.
- If there are extenuating circumstances preventing a timely response from you, contact your investigator to work out a new due date for the information.
- Provide complete and accurate information in response to requests from your investigator.
The average time it takes to process an HRC investigation is about
- Our experience shows that undue delay in responding to requests for information extends the time it takes to complete an investigation.
- If you have concerns regarding the scope of the information being sought, advise the investigator. Although HRC is entitled to all information relevant to the allegations contained in the charge, and has the authority to subpoena such information, in some instances, the information request may be modified.
- Keep relevant documents. If you are unsure whether a document is needed, ask your investigator. By law, you are required to keep certain documents for a set period of time.
Your investigator will:
- be available to answer most questions you have about the process.'
- keep you informed about the charge process, including the rights and responsibilities of the parties at the conclusion of the investigation.
- conduct an appropriate, thorough and timely investigation.
- allow you to respond to the allegations.
- inform you of the outcome of the investigation.
Once the investigator has completed the investigation, HRC will make a
determination on the merits of the charge.
- If HRC determines that there is no reasonable cause to believe that discrimination occurred, the charging party will be issued a letter called a Dismissal and Notice of Rights that tells the charging party s/he has the right to file a lawsuit in federal court within 90 days from the date of receipt of the letter. The employer will also receive a copy of this document.
- If HRC determines there is reasonable cause to believe discrimination has occurred, both parties will be issued a Letter of Determination stating that there is reason to believe that discrimination occurred and inviting the parties to join the agency in seeking to resolve the charge, through an informal process known as conciliation.
- Where conciliation fails, HRC has the authority to enforce violations of its statutes by filing a lawsuit in federal court. If the HRC decides not to litigate, the charging party will receive a Notice of Right to Sue and may file a lawsuit in federal court within 90 days.
How does a charge get resolved?
HRC offers employers many opportunities to resolve charges of discrimination. Successfully resolving the case through one of these voluntary processes may save you time, effort and money. Methods of resolution include:
HRC has greatly expanded it's mediation program. The program is free, quick, voluntary and confidential. If mediation is successful, there is no investigation.
If the charge filed against your company is eligible for mediation, you will be invited to take part in the mediation process. If mediation is unsuccessful, the charge is referred for investigation.
Advantages of Mediation
- HRC's mediation program is free.
- Mediation is efficient. The process is initiated before an investigation begins and most mediations are completed in one session, which usually lasts for one to five hours.
- The average processing time for mediation is 84 days.
- The mediation program is completely voluntary.
- Successful mediation results in the closure of the charge filed with HRC. If mediation is unsuccessful, the charge is referred for investigation.
- Mediators are neutral third parties who have no interest in the outcome of the mediation.
- Mediation is a confidential process. The sessions are not tape-recorded or transcribed. Mediator notes taken during the mediation are discarded. Information learned during the mediation can not be used during an HRC investigation if the mediation is unsuccessful.
- Mediation is an informal process. The goal of mediation is not fact finding. The purpose is to discuss the charge and reach an agreement that is satisfactory to all parties.
- Settlement agreements secured during mediation are not admissions by the employer of any violation of laws enforced by the HRC.
- Mediation avoids lengthy and unnecessary litigation.
- Settlement agreements secured during mediation are enforceable.
- The overwhelming majority of employers and charging parties participating in HRC mediation program are satisfied with the process and would use it again.
- Mediation can help the parties understand why the employment relationship broke down.
- Mediation can help the parties identify ways to repair an ongoing relationship.
To learn more about HRC's mediation program, and how to participate in it, visit the mediation section of the website.
Charges of discrimination may be settled at any time during the investigation. HRC investigators are experienced in working with the parties to reach satisfactory settlements. You should contact the investigator if you are interested in resolving your charge through settlement.
Advantages of Settlement
- Voluntary settlement efforts can be pursued at any time during the investigation, but settling a charge early may save you the time and effort associated with investigations.
- Settlement is an informal process. The goal of settlement is to reach an agreement that is satisfactory to all parties.
- There is no admission of liability.
- If the parties, including HRC, reach a voluntary agreement, the charge will be dismissed.
- Settlement agreements are enforceable.
- Settlement avoids lengthy and unnecessary litigation.
HRC is statutorily required to attempt to resolve findings of discrimination through "informal methods of conference, conciliation, and persuasion." See 42 U.S.C. 2000e-5. After the parties have been informed by letter that the evidence gathered during the investigation establishes that there is "reasonable cause" to believe that discrimination has occurred, the parties will be invited to participate in conciliation discussions. During conciliation, your investigator will work with you and the Charging Party to develop an appropriate remedy for the discrimination. We encourage you to take advantage of this final opportunity to resolve the charge prior to HRC considering the matter for litigation.
Advantages of Conciliation
- Conciliation is a voluntary process.
- Conciliation discussions are negotiations and counter-offers may be presented.
- Conciliation offers the parties a final opportunity to resolve the charge informally - - after an investigation has been conducted, but before a litigation decision has been reached.
- Conciliation agreements remove the uncertainty, cost and animosity surrounding litigation.
How else can HRC assist me?
HRC's outreach, education, and technical assistance efforts are vital components of our mission to eradicate employment discrimination. Our outreach program is designed to encourage voluntary compliance with the anti-discrimination laws and to assist employers, employees and stakeholder groups to understand and prevent discrimination. Take advantage of our expertise in the area of employment discrimination.
Many of our technical assistance materials are available free of charge. Copies of the laws enforced by HRC as well as HRC regulations are available on our website. The website also offers many of our enforcement and policy guidances and other materials that you may find helpful. Pamphlets and brochures about HRC and the laws it enforces can also be obtained by completing the publications request form on the website or by calling 1-800-669-3362 (voice), 1-800-800-3302 (TTY) or 1-513-489-8692 (Fax).
We offer no-cost outreach and educational programs which make HRC staff available for presentations and participation in meetings with employees, employers, community organizations and other members of the general public.
We also offer fee-based training and technical assistance programs throughout the country.
For more information on how we can assist you, visit the Outreach and Training section of the website.
Title VII of the Civil Rights Act of 1964 applies to employers with fifteen (15) or more employees.
The Age Discrimination in Employment Act of 1967 (ADEA) applies to employers with twenty (20) or more employees.
Title I of the Americans with Disabilities Act of 1990 (ADA) applies to employers with fifteen (15) or more employees.
The Equal Pay Act of 1963 (EPA) applies to most employers with one or more employees.