Top 10: Best Practices for Responding to a Charge of Discrimination

By MDCR Complaint Investigations Unit
US Mail

Once a Respondent entity (business, school, employer, or person) has been notified in writing that a charge of discrimination has been filed, it is the responsibility of the human resources representative, the business owner, or the retained law firm attorney to respond to that charge of discrimination. This responsibility can be challenging depending on the Respondent entity’s prior experience in navigating through the administrative agency process. Unlike the court filing process where the rules are clearly defined as to how to respond to a summons and complaint, the procedure for responding to a charge of discrimination is based on the individual practices of the charging administrative agency.

To provide some guidance to you, the Minneapolis Department of Civil Rights (MDCR) has created this list of the TOP 10 things to do when responding to a charge of discrimination from this office.

Top 10: Best Practices for Responding to a Charge of Discrimination

1. The Respondent MUST submit a written response to the Charge of Discrimination within the 20 day deadline.

It is in your best interest to respond to the charge. There are two actions that may occur if you fail to respond to a charge of discrimination within the 20 day period: (1) failure to respond may result in the Department pursuing a default judgment, or (2) the Department will proceed with the investigation with an unanswered charge. The MDCR has a well-established Alternative Dispute Resolution program which affords the parties to opportunity to resolve their cases through mediation without undergoing the investigation process. However, unlike some other civil rights agencies, it is the MDCR’s practice to receive all documents including the position statement and Request for Information (RFI) prior to scheduling a mediation.

2. The Respondent position statement should address ALL allegations made against the Respondent as outlined in the charge of discrimination.

The written position statement provides the Respondent with an opportunity to set forth its explanation of the non-discriminatory reasons for the particular action taken against the Complainant as outlined in the charge of discrimination. The position statement is considered to be one of the primary sources of evidence for the file. Therefore, the responding party should review the entire charge before submitting a response and make sure that it responds to all of the allegations in a detailed manner.

3. The position statement should include a facts section that provides a thorough description of your interaction(s) with the Charging Party.

Be sure to detail all of the incidences that took place involving the charging party during the relevant period – a.k.a., one year prior to the filing of the charge.

4. It is NOT necessary to include a detailed legal analysis in the position statement.

You may include legal citations but they are not required. The Minneapolis Civil Rights Ordinance (MCRO) has the resources to identify and research case law and that are relevant to both the claim and the response.

5. DO NOT include confidential information and/or “sensitive” information in the position statement.

A charge of discrimination is a complex legal document that includes causes of action. The position statement you submit will be forwarded to the charging party who is then invited to submit a rebuttal statement. In accordance to the Minnesota Data Practices Act, the position statement may be considered to be “public” data. To avoid disclosing sensitive and/or confidential information (as defined in the Minnesota Data Practices Act) to the charging party — that is, making this information “public” — you should include all material deemed to be confidential and/or sensitive with the response to the RFI and not the position statement. The information included with the RFI will be deemed confidential “human rights investigative data” pursuant to Minnesota Statute Section 363A.35. By law, the MDCR is precluded from releasing the confidential data to the Complainant or to the public.

6. The Request for Information should include all exhibits, policies, procedures, and confidential materials (such as personnel file, disciplinary reprimands, citations, etc.)

The RFI is very similar to an interrogatory, as it asks a series of questions regarding the responding party’s organization structure, actions, etc. If the Respondent has any concerns about the purpose of the questions or the scope of their response, they should contact the assigned investigator. The investigator can work with the Respondent on specifying the scope of the response and requesting for specific documents.

7. All exhibits should be labeled – i.e., Exhibit 1, or Exhibit A, or Responding Party Name 1, etc.

Labeling the exhibits allows for the investigator to adequately and accurately reference the investigative data and materials.

8. If an internal investigation by your organization occurred involving the Complainant, please include ALL investigatory notes.

This includes those handwritten and typed.

9. Please include ALL comparative data in the RFI.

Usually the RFI asks for documentation involving similar incidences where your organization has made the same decision, implemented the same policy, or acted in the same manner as it did with the Charging Party. It is important to include this information. It is requisite that you resist withholding information you may think is irrelevant as it is the role of the neutral investigator to sort out the facts. For employment cases, include comparative data such as separation notices and disciplinary records for all employees in a particular department.

10. CONTACT US: If you are uncertain as to how to format the position statement, contact the assigned investigator / intake officer.

The staff at the Minneapolis Department of Civil Rights is here to help answer questions or concerns about your case.

Thank you to Toni Newborn, contributing author and senior investigator.

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