The U.S. Equal Employment Opportunity Commission’s (EEOC) is a bi-partisan body of five members, appointed by the President and confirmed by the Senate, who act as the enforcer of employment anti-discrimination laws and chief promoter of equal employment opportunity in the US. In this webinar, leading practitioners and experts in management, employment, labor, and law will help attendees understand the charges, consequences, and responses required when facing charges levied by the EEOC – from the time a notice is received to the process of litigation. Specifically the issues being addressed include: Interpreting EEOC Charges — Charge Categorization EEOC Priority Analysis Responding to Requests for Information & Subpoenas; and/or Strategic Enforcement Goals Responding to the charges – Drafting a Response Preliminary Response Internal Investigation Prepare Position Statement Settle or Mediate – Advantages and Disadvantages Federal vs state agencies approach Preparing witnesses and onsite interviews in investigations To view the webcast go to this link: http://youtu.be/mWGbxitiHPQ To learn more about the webcast please visit our website: http://theknowledgegroup.org/

1. Speaker Firms and Organization:
Seyfarth Shaw LLP
Paul Kehoe
Senior Counsel
Foley & Mansfield
Louis C. Klein
Of Counsel
Dorsey & Whitney
Marilyn Clark
Partner
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Presented By:
June 06, 2014
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6. Partner Firms:
June 06, 2014
6
Seyfarth Shaw LLP has more than 800 attorneys in the U.S.,
London, Shanghai, Melbourne and Sydney offering a national
platform and an international gateway to serve the changing
business and legal needs in employment, litigation, corporate,
real estate and employee benefits. Recognized by in-house
counsel as ‘Best of the Best’ for client service among the 2013
BTI Consulting Group’s Client Service A-team and named among
the Most Innovative Law Firms of 2013 by the Financial Times in
its U.S. Innovative Lawyers 2013 report for the third consecutive
year.
Foley & Mansfield, named a 2014 “Go-To” Law
Firm for Fortune 500 clients, provides a broad
spectrum of services to clients throughout the
country. Celebrating its 25th year in business,
Foley & Mansfield is a national law firm with a
diverse practice of business and trial attorneys in
ten offices across the U.S. To learn more about
how the firm can serve your business, visit
www.foleymansfield.com.

7. Partner Firms:
June 06, 2014
7
Clients have relied on Dorsey and Whitney LLP since 1912 as a
valued business partner. With 18 locations in the United States,
Canada, Europe and Asia region, Dorsey provides an
integrated, proactive approach to its clients' legal and business
needs. Dorsey represents a number of the world's most
successful companies from a wide range of industries, including
leaders in the financial services, health care and life sciences,
agribusiness, energy, and infrastructure sectors, as well as major
non-profit and government entities.

8. Brief Speaker Bios:
Paul Kehoe
Mr. Kehoe is Senior Counsel in Seyfarth Shaw LLP’s Washington D.C. office. Prior to re-joining Seyfarth in September 2013, he
served as an Attorney Advisor to the Honorable Victoria A. Lipnic, Commissioner at the Equal Employment Opportunity Commission,
for almost three and a half years.
While at the EEOC, Mr. Kehoe provided legal counsel to Commissioner Lipnic regarding all policy matters confronting the
Commission, including final regulations and enforcement guidance documents, and regarding all aspects of agency business such as
Commission-initiated litigation, systemic litigation, requests for approval to file amicus briefs by the Office of General Counsel,
subpoena determinations, and field activities. He negotiated and drafted regulatory text for the final regulations under the ADAAA,
GINA, and the ADEA, and the Commission’s Enforcement Guidance on the Consideration of Arrest and Criminal Conviction Decisions
under Title VII.
June 06, 2014
8
Louis C. Klein
Louis C. Klein has nearly 20 years’ experience in all aspects of employment counseling,, workplace investigation, mediation and trial
practice. Louis has handled numerous trials, arbitrations and mediations, and participated in administrative proceedings before the
California Department of Fair Employment and Housing ("DFEH"), the United States Equal Employment Opportunity Commission
("EEOC"), and the California Labor Commissioner. He also provides advice and counseling on day-to-day employment law issues,
including discipline and termination, wage and hour issues, employment contracts for employees and key executives, and other
transactional/employment business advice.

9. Brief Speaker Bios:
Marilyn Clark
Marilyn Clark is a partner at Dorsey & Whitney LLP. She joined Dorsey’s Labor and Employment group in 2006, and her practice
consists of both litigation and advice services in a broad range of employment matters. In addition to representing clients in various
state and federal courts, she has advocated for individuals and businesses in arbitrations, mediations, and administrative proceedings,
including proceedings before the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, and
various state unemployment and civil rights divisions. She also regularly offers day-to-day guidance to employers of all sizes on
compliance with employment laws. She has expertise in wage and hour audits, particularly with regard to exemption status, and she
has presented and offered numerous training sessions on this topic. She graduated cum laude from Cornell Law School, where she
served as a managing editor of the Cornell Law Review.
June 06, 2014
9
► For more information about the speakers, you can visit: http://theknowledgegroup.org/event_name/the-equal-employment-opportunity-commission-understanding-and-responding-to-eeoc-charges-
live-webcast/

10. The U.S. Equal Employment Opportunity Commission’s (EEOC) is a bi-partisan body of five members,
appointed by the President and confirmed by the Senate, who act as the enforcer of employment anti-
discrimination laws and chief promoter of equal employment opportunity in the US.
In this webinar, leading practitioners and experts in management, employment, labor, and law will help
attendees understand the charges, consequences, and responses required when facing charges levied by the
EEOC – from the time a notice is received to the process of litigation. Specifically the issues being addressed
include:
•Interpreting EEOC Charges — Charge Categorization
•EEOC Priority Analysis
•Responding to Requests for Information & Subpoenas; and/or Strategic Enforcement Goals
•Responding to the charges – Drafting a Response
• Preliminary Response
• Internal Investigation
• Prepare Position Statement
•Settle or Mediate – Advantages and Disadvantages
•Federal vs state agencies approach
•Preparing witnesses and onsite interviews in investigations
June 06, 2014
10

11. Featured Speakers:
June 06, 2014
11
SEGMENT 1:
Paul Kehoe
Senior Counsel
Seyfarth Shaw LLP
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield
SEGMENT 3:
Marilyn Clark
Partner
Dorsey & Whitney

12. Introduction
Mr. Kehoe is Senior Counsel in Seyfarth Shaw LLP’s Washington D.C. office. Prior to rejoining Seyfarth in September 2013,
he served as an Attorney Advisor to the Honorable Victoria A. Lipnic, Commissioner at the Equal Employment Opportunity
Commission, for almost three and a half years.
While at the EEOC, Mr. Kehoe provided legal counsel to Commissioner Lipnic regarding all policy matters confronting the
Commission, including final regulations and enforcement guidance documents, and regarding all aspects of agency
business such as Commission-initiated litigation, systemic litigation, requests for approval to file amicus briefs by the Office
of General Counsel, subpoena determinations, and field activities. He negotiated and drafted regulatory text for the final
regulations under the ADAAA, GINA, and the ADEA, and the Commission’s Enforcement Guidance on the Consideration of
Arrest and Criminal Conviction Decisions under Title VII.
June 06, 2014
12
SEGMENT 1:
Paul Kehoe
Senior Counsel
Seyfarth Shaw LLP

13. Introduction
• EEOC Structure
• 5 Commissioners
• Office of General Counsel
• Office of Legal Counsel
• Office of Field Programs
• 53 Field Offices, including 15 District Offices
• Role of the Commissioners
• Annual Charge Receipts
June 06, 2014
13
SEGMENT 1:
Paul Kehoe
Senior Counsel
Seyfarth Shaw LLP

14. Charge Statistics
• FY 2009 – 93,277 (received); 85,980 (resolved); 85,768 (backlog)
• FY 2010 – 99,922 (received); 104,999 (resolved); 86,338 (backlog)
• FY 2011 – 99,947 (received); 112,499 (resolved); 78,136 (backlog)
• FY 2012 – 99,412 (received); 111,139 (resolved); 70,312 (backlog)
• FY 2013 – 93,724 (received); 97,252 (resolved); 70,781 (backlog)
June 06, 2014
14
SEGMENT 1:
Paul Kehoe
Senior Counsel
Seyfarth Shaw LLP

15. Priority Charge Handling Procedures (“PCHP”)
• Pre-1995: Full Investigation Protocol
• PCHP adopted in 1995
• Predicated on National Enforcement Plan and Local Enforcement Plan Priorities
• Focus on priority areas and charge closures
• Dedicated application of PCHP eases
June 06, 2014
15
SEGMENT 1:
Paul Kehoe
Senior Counsel
Seyfarth Shaw LLP

16. EEOC’s Systemic Initiative
• Adopted in 2006; Gained Momentum within 3-4 years
• Cooperative Effort Among EEOC Field Offices
• Concerted Move Toward Initiating More Systemic Cases
• Based On The Notion That “Where There Is Smoke (One EEOC Charge), There Is Likely To Be Fire”
(Discrimination Against A Group Of Employees)
• Employers Will Face More Class-Like Cases Not Governed By Federal Rules That Apply To Other
Class Cases
June 06, 2014
16
SEGMENT 1:
Paul Kehoe
Senior Counsel
Seyfarth Shaw LLP

17. Strategic Enforcement Plan
• In December 2012, the EEOC announced that it approved its Strategic Enforcement Plan for FY
2013-2016.
• EEOC’s SEP will function as the blueprint for the Commission’s enforcement activity for the
next several years.
• SEP further emphasizes the EEOC’s increased emphasis on systemic litigation suits.
• “meritorious systemic charges and cases that raise SEP or district priority issues [will] be given
precedence over individual priority matters and over all non-priority matters, whether individual or
systemic.”
• Systemic cases can have a significant impact on employers given the EEOC’s wide-reaching
investigation and aggressive litigation practices.
June 06, 2014
17
SEGMENT 1:
Paul Kehoe
Senior Counsel
Seyfarth Shaw LLP

18. Strategic Enforcement Plan (cont’d)
6 Priorities
• Eliminating Barriers in Recruitment and Hiring
• Protecting Immigrant, Migrant and Other Vulnerable Workers
• Addressing Emerging and Developing Issues
• Enforcing Equal Pay Laws
• Preserving Access to the Legal System
• Preventing Harassment Through Systemic Enforcement and Targeted Outreach
Other Priorities
• District Complement Plans – LOCATION, LOCATION, LOCATION
June 06, 2014
18
SEGMENT 1:
Paul Kehoe
Senior Counsel
Seyfarth Shaw LLP

19. SEP Priorities Within The Priorities
Watch out for new Statutes, Regulations and/or Guidance
• Reasonable Accommodation Cases
• Background Checks & Implicit Bias
• ADEA Reduction in force cases
• Leave Cases
• Pregnancy Discrimination
• Wellness Plans
June 06, 2014
19
SEGMENT 1:
Paul Kehoe
Senior Counsel
Seyfarth Shaw LLP

20. EEOC Performance In 2013
• Charges
• 93,724 (received); 97,252 (resolved);
70,781 (backlog)
• $372.1M Collected
• Litigation
• 134 Lawsuits Filed
• $39M Collected
• Continued Implementation of Strategic
Enforcement Plan
June 06, 2014
20
SEGMENT 1:
Paul Kehoe
Senior Counsel
Seyfarth Shaw LLP

21. EEOC Performance in 2013
June 06, 2014
21
SEGMENT 1:
Paul Kehoe
Senior Counsel
Seyfarth Shaw LLP

22. EEOC Cases Filed by District FY 2013
June 06, 2014
22
SEGMENT 1:
Paul Kehoe
Senior Counsel
Seyfarth Shaw LLP

23. Interpreting an EEOC Charge
• Charge Classification – A, B, C
• Systemic Target?
• Class or policy allegations?
• Priority Area?
• Subject of a recent guidance document?
June 06, 2014
23
SEGMENT 1:
Paul Kehoe
Senior Counsel
Seyfarth Shaw LLP

24. Requests For Information and Subpoenas
• The EEOC Is Uses Its Subpoena Power As An Early Discovery Tool
• Pursuing More Aggressively Than Ever Before
• Short Time Frame To Challenge An EEOC Subpoena (5 Days)
• Case law not favorable to Respondents
• Fewer subpoena enforcement actions in 2013
• EEOC v. HomeNurse, Inc., 2013 U.S. Dist. LEXIS 147686 (N.D. Ga. Sept. 30, 2013) (Court denied
the EEOC’s application for enforcement of its administrative subpoena)
June 06, 2014
24
SEGMENT 1:
Paul Kehoe
Senior Counsel
Seyfarth Shaw LLP

25. Introduction
Louis C. Klein has nearly 20 years’ experience in all aspects of employment counselling, workplace investigation, mediation
and trial practice. Louis has handled numerous trials, arbitrations and mediations, and participated in administrative
proceedings before the California Department of Fair Employment and Housing ("DFEH"), the United States Equal
Employment Opportunity Commission ("EEOC"), and the California Labor Commissioner. He also provides advice and
counseling on day-to-day employment law issues, including discipline and termination, wage and hour issues, employment
contracts for employees and key executives, and other transactional/employment business advice.
June 06, 2014
25
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

26. Preliminary Response to EEOC Charge
 Review Charge
 Do Not Ignore!
 Notify Affected Managers
 Obtain and Preserve all documents relating to Charging Party
 Emails, Electronic Information, Personnel Files, Hiring/Firing Practices and Policies and
other employment policies relating to Charge
June 06, 2014
26
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

27. Preliminary Response
 Prepare Notice of Appearance
 Request Extension for Position Statement if needed
 Do not wait to request extension
 Call – do not write – EEOC Investigator to request extension – Time is critical
 Be courteous and responsive when speaking with EEOC Investigator – Why?
 Confirm extension in writing
June 06, 2014
27
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

28. Preliminary Response
 Determine if Charge is Timely
 Was it filed within the Statutory Time: 180 days from date of discriminatory act
 Verify dates in Charge with documentation
 State FEP Agency – May give Charging Party an additional amount of time – 300 days from date
of discriminatory act
 If Charge is untimely, may be able to obtain dismissal
June 06, 2014
28
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

29. Preliminary Response
 Plan Internal Investigation
 EEOC Enforcement Guidance
 Promptness - Diligent and timely
 Impartiality – Objective Investigation
 Confidentiality
 Training
 Thoroughness
 Questioning – relevant, open-ended questions
 Determining Credibility
 Making a Determination
June 06, 2014
29
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

30. Preliminary Response
 Create Investigation Plan
 Interviews
 Complaining Employee
 Alleged Wrongdoer
 Witnesses
 Documents
 Report
 Determination
 Action
June 06, 2014
30
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

31. Preliminary Response
 Consider nature of complaint: Sexual harassment, discrimination, hiring practices, disability
 Consider appropriateness of administrative leave or temporary transfer of assignments
June 06, 2014
31
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

32. Preliminary Response
 Review potential for Retaliatory Action
 Notify managers who have responsibility over Charging Party
 Scrutinize any adverse employment actions before disciplining Charging Party
 If Charging Party has engaged in misconduct, suspend with pay pending investigation rather
than immediate termination
June 06, 2014
32
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

33. Preliminary Response
 Mediation
 Assess whether it is in Employer’s best interest to pursue mediation or settlement of EEOC
Charge
 Continue with investigation
June 06, 2014
33
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

34. Internal Investigation
 Designate “Neutral” Investigator
 Is Investigator a witness?
 Licensed Private Investigator
 Attorney
 In-House
 Someone trained to conduct investigations
 Someone not in chain of command
June 06, 2014
34
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

35. Internal Investigation
 Review Charges
 Notify Legal Counsel and HR
 Do it early
 Set Plan for Investigation and response
 Review relevant documents
 Personnel files, company handbook and policies, emails, nonprivacy-protected social media
June 06, 2014
35
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

36. Internal Investigation
 Interview Charging Party
 As soon as possible
 Consider neutral site
 Explain process
 Fact Background – Funnel Approach
 Timeline/Chronology
 Witnesses
 Documents
 Catch-all questions
June 06, 2014
36
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

37. Internal Investigation
 Do not give legal advice
 Do not become subjective or bias
 Do not commit to a particular response
 Do not retaliate
 Castelluccio v. IBM (Conn. Dist.) – one-sided investigation inadmissible in court
June 06, 2014
37
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

38. Internal Investigation
 Alleged Wrongdoer Interview
 After Charging Party
 Inform of Charge
 No Retaliation
 Review Policies
 Other Witnesses
 Same process – Funnel Approach
 Re-Interview Charging Party, Alleged Wrongdoer and other employees
June 06, 2014
38
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

39. Internal Investigation
 Written Report of Investigation
 Basis for Position Statement
 Credibility Determinations
 Summary of Interviews and Documents reviewed
 Narrative of Investigation and analysis
 Attach all relevant material
 REACH A CONCLUSION
June 06, 2014
39
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

40. Internal Investigation
 Appropriate Response
 Failure to act is fatal
 Punishment should fit the crime
 Verbal warning
 Written warning
 Counseling
 Suspension/Probation
 Transfer/Demotion
 Termination
June 06, 2014
40
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

41. Internal Investigation
 A Word on Confidentiality
 EEOC Guidelines – Try to Protect Confidentiality
 NLRB - Banner Health System, 358 NLRB No. 93 (2012) - Employer’s burden to first determine
whether: (1) witnesses need protection; (2) evidence is in danger of being destroyed; (3)
testimony is in danger of being fabricated, or (4) there is a need to prevent a cover up
 EEOC interview – broad policies can run afoul of anti-retaliation provisions of Title VII
June 06, 2014
41
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

42. Position Statement
 Take Seriously – Employer’s chance to tell complete story – should be more than a response
to Charge – But be Respectful
 Clear, concise and thorough
 Remember to Educate – EEOC investigator likely does not know your business – do not use
jargon
 Include documents
 Check and re-check facts
June 06, 2014
42
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

43. Position Statement
 If denial of Charge – state in beginning and give brief summary of Employer’s position
 Describe Employer’s business
 Describe Charging Party’s employment history and job
 Describe Employer’s policies and procedures
 Describe and explain any adverse employment actions
 Show why no discriminatory action took place
June 06, 2014
43
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

44. Position Statement
 Show why other employees not similarly situated to Charging Party, or why action was
consistent with other determinations
 Conclusion and Request for Dismissal of Charges
 Other issues:
 Timeliness of charge
 Offers of reinstatement
 After-acquired evidence
June 06, 2014
44
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

45. Position Statement
 Discoverable
 Can be used in subsequent litigation
 All information in EEOC files may be discoverable in litigation
 Kwan v. Andalex Group, LLC (2nd Cir.) – changing story from EEOC Position Statement to
Litigation
 Inconsistent statements
June 06, 2014
45
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield

46. Introduction
Marilyn Clark is a partner at Dorsey & Whitney LLP. She joined Dorsey’s Labor and Employment group in 2006, and her
practice consists of both litigation and advice services in a broad range of employment matters. In addition to representing
clients in various state and federal courts, she has advocated for individuals and businesses in arbitrations, mediations, and
administrative proceedings, including proceedings before the Equal Employment Opportunity Commission, the Occupational
Safety and Health Administration, and various state unemployment and civil rights divisions. She also regularly offers day-
to-day guidance to employers of all sizes on compliance with employment laws. She has expertise in wage and hour audits,
particularly with regard to exemption status, and she has presented and offered numerous training sessions on this topic.
She graduated cum laude from Cornell Law School, where she served as a managing editor of the Cornell Law Review.
June 06, 2014
46
SEGMENT 3:
Marilyn Clark
Partner
Dorsey & Whitney

47. Should You Settle or Mediate?
• A key component of internal investigations is RISK ASSESSMENT
– Underlying facts and evidence are important in determining whether it makes sense to pursue
early resolution
– Other considerations include:
• Witness demeanor
• Charging Party’s demeanor
• Opposing counsel
• Opening demand
• Business / operational needs
• Type of charge: “A” or “B”
• Evaluate case early to maximize value of settlement / mediation
June 06, 2014
47
SEGMENT 3:
Marilyn Clark
Partner
Dorsey & Whitney

48. Should You Settle or Mediate?
• Advantages to mediating appropriate charge:
– May short-circuit costly investigation / litigation processes
• Mediation usually takes place early in the process prior to agency’s investigation of the
charge
• Good track record of successful mediations
– May be able to settle for less at agency stage
• Good chance for resolution with non-monetary component
• Settlement cost likely will increase once litigation filed and positions “hardened”
– Especially true if probable cause finding
– Mediation services through the agency are free
– Mediation is confidential
June 06, 2014
48
SEGMENT 3:
Marilyn Clark
Partner
Dorsey & Whitney

49. Should You Settle or Mediate?
• Disadvantages to mediating the wrong charge:
– Agency is disposed to push for settlement, even where charge seems frivolous
• Mediating every charge may encourage disgruntled employees to file frivolous complaints
– If mediation fails, Charging Party may develop unrealistic expectations regarding potential
recovery
– Mediators vary in style and approach
June 06, 2014
49
SEGMENT 3:
Marilyn Clark
Partner
Dorsey & Whitney

50. If You Decide to Mediate:
Consider whether to engage counsel
• Advantages:
– Help you understand your legal rights
– Help you evaluate legal landscape and potential liability
– Help you assess an appropriate settlement range
• Potential concern:
– If the employer is represented by counsel, the Charging Party may be
more likely to seek counsel as well (if he/she hasn’t already done so)
• May increase cost of settlement
June 06, 2014
50
SEGMENT 3:
Marilyn Clark
Partner
Dorsey & Whitney

51. If You Decide to Mediate:
Come Prepared!
• Prepare a pre-mediation statement
• Prepare general overview explaining your position to the mediator
• Know the relevant background
• Bring relevant documents
• Ensure individual with settlement authority attends (or is available to sign off on settlement)
• Consider whether to ask accused employees or supervisors to attend
June 06, 2014
51
SEGMENT 3:
Marilyn Clark
Partner
Dorsey & Whitney

52. If You Decide to Mediate:
(Come Prepared, con’t)
• Be prepared with an opening offer
• Be prepared to identify all relevant settlement terms
• Bring a draft settlement agreement
• Plan to be available for the entire day!
June 06, 2014
52
SEGMENT 3:
Marilyn Clark
Partner
Dorsey & Whitney

53. Agency Witness Interviews
• If you decide against mediation (or if mediation fails), EEOC will begin investigatory process
• EEOC gathers evidence in two primary ways:
• Requests position / informational statements outlining the Company’s response to the
charge of discrimination and providing supporting documents.
• Requests “on-site” examination of the workplace, including face-to-face interviews with
witnesses.
June 06, 2014
53
SEGMENT 3:
Marilyn Clark
Partner
Dorsey & Whitney

54. Agency Witness Interviews
• On-site investigations historically rare
– Traditionally signaled complex case or heightened agency interest
– Becoming more commonplace
• Concerns:
– Sense of relinquished control when investigating agency enters the workplace
• Benefits:
– Cooperation and live interaction may personalize the employer and allow for a more sympathetic
view of the employer’s position
June 06, 2014
54
SEGMENT 3:
Marilyn Clark
Partner
Dorsey & Whitney

55. Agency Witness Interviews
Steps to Mitigate Concerns and Maximize Benefits:
• Submit reasonable requests to agency regarding scope of interviews
– Location
– Duration
– Sequence of witnesses
• Prepare the workplace
• Prepare the witnesses
• Invite agency to interview additional witnesses if doing so will help tell your story
• Send supplemental position statement to clarify information as needed
June 06, 2014
55
SEGMENT 3:
Marilyn Clark
Partner
Dorsey & Whitney

56. Agency Witness Interviews
Know Your Rights!
• Counsel may be present for interviews with management employees
– Protect A/C privilege
– Take notes
– Help clarify position, BUT beware of appearance attempting to alter testimony or control the
process
• Trend among EEOC investigators – asking managers to sign affidavits investigator prepares after the
interview
– Unclear whether agency may require managers to sign
– Best to comply, BUT certainly may ask for time to review and correct any mistakes
June 06, 2014
56
SEGMENT 3:
Marilyn Clark
Partner
Dorsey & Whitney

57. Federal vs. State Agencies
• BE AWARE of key differences in claims covered:
– Broad range of protected classes under state human-rights laws
– Class actions may be filed with EEOC, but may not be an option at some state agencies
– Small employers not covered under Title VII / ADA may be covered under state law
– Many state laws allow for individual liability (aiding/abetting)
June 06, 2014
57
SEGMENT 3:
Marilyn Clark
Partner
Dorsey & Whitney

58. Federal vs. State Agencies
• BE AWARE of key differences in procedure:
– May be different limitations periods
• Federal: Charge generally must be filed within 180 days of last alleged wrongful act
– Extends to 300 days where a state or local agency enforces law prohibiting same
discrimination
– Exception: ADA
• State: Limitations periods may vary
– May be different investigation deadlines
• Federal: If longer than 180 days, may request right-to-sue notice
• State: May be stricter deadlines
June 06, 2014
58
SEGMENT 3:
Marilyn Clark
Partner
Dorsey & Whitney

59. Federal vs. State Agencies
• BE AWARE of key differences in procedure (con’t):
– May be different administrative-exhaustion requirements
• Federal: Generally must file agency charge and receive right-to-sue letter before court
action may proceed
– Exception: Equal Pay Act
• State: May not be exhaustion requirements in some states
June 06, 2014
59
SEGMENT 3:
Marilyn Clark
Partner
Dorsey & Whitney

60. Federal vs. State Agencies
BE AWARE of work-share agreements between the EEOC and state human-rights agencies
• In many states, the EEOC has entered into a work-sharing agreement with the state fair employment
practices agency.
• In these states, if the Charging Party files a charge of discrimination with either the EEOC or the state
agency, the charge will automatically be filed with the other agency.
June 06, 2014
60
SEGMENT 3:
Marilyn Clark
Partner
Dorsey & Whitney

61. Contact Info:
June 06, 2014
61
Louis C. Klein
Of Counsel
Foley & Mansfield
lklein@foleymansfield.com
213-283-2100
Paul Kehoe
Senior Counsel
Seyfarth Shaw LLP
phkehoe@seyfarth.com
(202) 828-5375
Marilyn Clark
Partner
Dorsey & Whitney
clark.marilyn@dorsey.com
(612) 492-6885

62. June 06, 2014
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63. June 06, 2014
63
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65. ► You may ask a question at anytime throughout the presentation today. Simply click on the question mark icon located on the floating tool bar on the bottom right side of your screen. Type
your question in the box that appears and click send.
► Questions will be answered in the order they are received.
Q&A:
June 06, 2014
65
SEGMENT 1:
Paul Kehoe
Senior Counsel
Seyfarth Shaw LLP
SEGMENT 2:
Louis C. Klein
Of Counsel
Foley & Mansfield
SEGMENT 3:
Marilyn Clark
Partner
Dorsey & Whitney

66. June 06, 2014
66
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67. June 06, 2014
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68. June 06, 2014
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