Providing Legal Services For More Than 125 Years

Initial Response To Notice Of Employee’s Discrimination Claim Is Critical

On Behalf of | Nov 8, 2017 | Employment Law

Notwithstanding diligent screening in the application process, sometimes employees are not found to have the same capabilities or work ethic they purported to have during job interviews or their situation changes and their job performance suffers. Many employees when fired for job performance reasons understand the boss’ reasoning even if they disagree, but others file discrimination suits.  Claims the employer can see may have merit they hopefully take seriously yet even claims that are frivolous need a detailed response with corroborating documents and signed witness statements when possible.

New Hampshire employment discrimination claims are generally filed with the New Hampshire Commission for Human Rights (“NHCHR”) in Concord or the Equal Opportunity Employment Commission (“EEOC”) in Boston.  Employees primarily working in a Massachusetts location, may also file a claim with the Massachusetts Commission Against Discrimination (“MCAD”) in Boston.  These agencies will provide a notice to the employer with an opportunity to respond to the particular allegations and provide certain detailed documents and a time deadline to do so.  For some of these employees, particularly when they are not represented by an attorney, their claim may be very sparse without much in factual detail. To provide a similarly sparse response that is dismissive is usually a mistake.

The governmental investigators, both at the state and federal levels, are experienced and can parse through the claims that are clearly meritless, likely to be meritless, or have minimal or no damage from cases that may need a lot more attention by that agency thereby prioritize how quickly they move investigating the case.  Making the investigator’s job easier by providing specific non-evasive responses to the allegations and additional information the employer believes is relevant, along with corroborating documentation, is in the best interest of the employer.  The employer with a meritorious defense greatly benefits from the investigator getting to the truth of the matter quickly.  The former employee who filed the claim may do so without an attorney and may later seek to retain an attorney to get the case out of the agency and into court.  Knowledgeable attorneys who might represent the former employee would not only want to see the claims asserted by the employee, but also the response by the employer, including any sworn-to witness statements and documents that the employer believes support its position that there was no discrimination and that the employee was fired due to poor job performance or other reasons that are not discriminatory.  If there are a variety of witnesses, including non-management co-workers of the employee, who are able to honestly state in their own words what happened; whether it be explaining the former employee’s threats to co-workers, his lackadaisical attitude on the job, the inability to provide a quality services or product, or other detailed information, then the investigator can contact that non-management witness employees directly to confirm their written statements are accurate and get to the truth much faster.

By way of example, I have represented employers on several occasions over the years wherein the belligerent and boorish employee who abused his co-workers of the opposite gender when fired, wrongfully accuses the employer in a state or federal agency of firing him because of gender, race, age, disability or another protected class employment discrimination even though he was fired for being a jerk. Being a jerk is not a protected class and you can be fired for it in both New Hampshire and Massachusetts. Through accurate co-worker statements who witnessed or were the victim of the belligerent and boorish behavior, in addition to other documentation including past warnings or other collaborating documents, the employer can be proven that the employee’s belligerent and boorish behavior was the cause of the firing and no employment discrimination.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].