What is Delaware Department of Labor Office of Anti-Discrimination (OAD)?
- The OAD has authority to receive, initiate and investigate charges of discrimination filed against employers who have a statutory minimum number of employees.
- The OAD’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. A charge does not constitute a finding that your company engaged in discrimination. The OAD has a responsibility to investigate and determine whether there is a reasonable cause to believe discrimination occurred.
- You may opt to resolve a charge early in the process through mediation. If you do not choose this option, you may submit an answer to the charge of discrimination, along with a position statesment. This is your opportunity to tell your side of the story and you should take advantage of it. You must send a copy of your answer and position statement, and any attachments, to the Charging Party, and certify to the OAD that you have done so. Certain information is exempt from this disclosure requirement. You need not share with Charging Party the names of your witnesses; other employees’ personnel files; other employees’ confidential medical information; or confidential trade secrets.
- Within 60 days of service of the charge of discrimination on the employer, the OAD will review all submissions by you and the Charging Party and make a preliminary determination. Both you and the Charging Party will be notified of the preliminary determination. One of three things can occur:
- The case can be referred to mediation if both you and the Charging Party requested this;
- The case can be referred for preliminary dismissal if the submissions indicate that there is “No Reasonable Cause” to believe that discrimination occurred. In this event, the Charging Party will be provided an explanation and an opportunity to provide additional information or evidence. You will receive a copy. Depending on the Charging Party’s response, the case will either be dismissed or referred for further investigation. You will be informed of all decisions.
- The case can be referred for further investigation.
- If the case is referred for further 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.
- Attend a fact-finding conference. Such conferences often help to expedite the fact-finding process and may help achieve quicker resolutions.
- If the charge was not dismissed by the OAD at the preliminary determination, 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 the OAD in promptly and thoroughly investigating a charge.
- 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 OAD 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 fully investigate is about 18 months from the date of filing. Some investigations may take less time.
- If you have concerns regarding the scope of the information being sought, advise the investigator. Although the OAD 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 or redacted to maintain confidentiality.
- 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, the OAD will make a determination on the merits of the charge.
- If the OAD determines that there is no reasonable cause to believe that discrimination occurred, the charging party will be issued a Final Determination and Notice of Right to Sue that tells the charging party s/he has the right to file a lawsuit in state court within 90 days from the date of receipt of the letter. The employer will also receive a copy of this document.
- If the OAD determines there is reasonable cause to believe discrimination has occurred, both parties will be issued a Final Determination stating that there is reason to believe that discrimination occurred and providing a date for the parties to meet at the agency in seeking to attempt a resolution to the charge, through an informal process known as conciliation.
- Where conciliation fails, the charging party will receive a Notice of Right to Sue and may file a lawsuit in state court within 90 days.
How does a charge get resolved?
OAD 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:
The OAD has greatly expanded it’s mediation program. The program is free, quick, voluntary and confidential. If mediation is successful, there is no investigation.
If both you and charging party agree to 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
- The OAD’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 EEOC. 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 a OAD 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 EEOC.
- Mediation avoids lengthy and unnecessary litigation.
- Settlement agreements secured during mediation are enforceable.
- The overwhelming majority of employers and charging parties participating in the OAD 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 the OAD’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. OAD 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 the OAD, reach a voluntary agreement, the charge will be dismissed.
- Settlement agreements are enforceable.
- Settlement avoids lengthy and unnecessary litigation.
The OAD attempts to resolve findings of discrimination through “informal methods of conference, conciliation, and persuasion.” 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 required to attend a conciliation conference. 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 the matter being considered 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 OAD assist me?
The OAD’s outreach and education 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 and employees to understand and prevent discrimination. Take advantage of our expertise in the area of employment discrimination.
- We offer no-cost outreach and educational programs which make the OAD staff available for presentations and participation in meetings with employees, employers, community organizations and other members of the general public.
The Delaware Discrimination in Employment Act (DDEA) applies to employers with four (4) or more employees.
Handicapped Persons Employment Protection Act (HPEPA) applies to employers with fifteen (15) or more employees.
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Related Topics: Anti-Discrimination, Employers, mediation