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A Charge is Filed Against Your Small Business, Now What?

You own a small business with a handful of employees and you don’t have in-house legal counsel. Someone files a discrimination charge against you with the Ohio Civil Rights Commission. Now what do you do?
First, don’t panic. Try to have a neutral third party investigate the charge to find out what happened. If there is discrimination, try to correct it. Cooperate with the Commission and the investigator to explain why the company did what it did and to determine what the options are. The worst thing you can do is ignore the charge and hope it goes away. It won’t.
Explain the reasons for your actions. Many people forget that the Ohio Civil Rights Commission is a neutral fact-finding agency. The majority of the charges filed with the Commission end up with a no probable cause determination. Even if there is a probable cause determination, many of the charges are resolved through the Commission’s mediation and conciliation processes.
Also identify ways to prevent future charges. Some charges that are filed with the Commission are the result of misunderstandings and miscommunication. Establishing a human resources point person who can address these issues when they arise is a great way to stop a misunderstanding from turning into a charge. Another way to stop miscommunications from turning into charges is to establish policies and to consistently apply them. Fair employment training is another way to prevent charges from happening.
Even if you have the best trained workforce and a great HR team, charges happen. When they do, get to the root of the problem and correct it. The Commission offers mediation services where the parties try to work out an amicable resolution even before the process gets started. The Commission’s skilled mediators help parties reach an agreement that everyone can live with. Most of the charges involve a relationship such as employer/employee or landlord/tenant that is going to last long after the Commission closes its file, so it’s important to reach a resolution that will allow the parties to continue the relationship. 
Once the investigative process gets started, the Commission investigator will send you a copy of the charge, which explains why the aggrieved party thinks he or she was discriminated against. The investigator then will ask you to file a position statement which addresses the allegations in the charge. The aggrieved party is initially asked to provide witnesses to support his or her position. You should take the same opportunity to provide the investigator with a list of your witnesses. Make sure you include a short summary of what relevant evidence you believe the witness has to add. Don’t forget to provide the investigator with your witnesses’ contact information.
During the course of an investigation, additional witnesses or documents may be requested by the investigator. Promptly make the witnesses available and produce the documents.  The Commission is under a statutorily imposed one-year time deadline from the filing of a charge to make its probable- or no-probable-cause decision, so time is of the essence. The investigator may also request to do an on-site inspection where he or she will visit and view the facility and talk to witnesses on site. Help the investigator schedule a convenient time for the visit and make the witnesses available.

Once the investigator completes the investigation, the Commission will issue a letter of determination which informs the parties whether the Commission found probable cause. If you disagree with a probable cause determination, you can request reconsideration. You have 10 days from the receipt of the letter of determination to file your request for reconsideration.
When you request reconsideration, don’t criticize the investigator. Explain why the decision is wrong. If you feel that the investigator failed to contact a relevant witness or failed to consider a crucial piece of evidence, explain why the information is important. Submit any additional evidence you have.
You have an opportunity to request an appearance before the Commission to argue your request for reconsideration or you can have the Commission decide it without appearing. If it was worth the time to file a request for reconsideration, it is probably worth the time to request an appearance to argue your position.
The arguments begin with the regional director procedurally explaining how the case came before the Commission and explaining the facts that led to the Commission’s letter of determination. Next, the party who requested reconsideration is given five minutes to make his or her arguments, followed by the party in whose favor the decision was made. The Commission sometimes allows the parties additional time and asks lots of questions during the process. Having the decision maker or other necessary witnesses at the meeting is a big plus if the Commissioners have any questions. The Commission renders its decision at the end of the arguments.   
If your request for reconsideration is denied, you still have an opportunity to resolve it during the Commission’s conciliation process. During the conciliation process, the Commission will send you a conciliation agreement and consent order to try and eradicate the unlawful discriminatory conduct. If conciliation isn’t successful, a complaint is issued by the Commission and sent to the Attorney General’s Office for prosecution.
What do you do after the Attorney General’s Office takes over? Stay tuned, that’s a topic for the next edition of the “Civil Rights Reporter.”