There is a particular kind of mail no business owner enjoys opening. It comes certified, in a thin envelope, with a return address from the Equal Employment Opportunity Commission or the Texas Workforce Commission Civil Rights Division. Inside is a Notice of Charge of Discrimination, a few pages summarizing what a current or former employee has accused the company of doing, and a deadline.
If you have just received one in Texarkana, the first thing to know is that this is the moment when defense decisions either get made carefully or get made badly. Here is what we tell employers when the certified letter lands.
Do not respond before you understand the case.
Charges arrive with a request for a position statement, and the temptation is to fire something off — to “explain what really happened” before the deadline runs. Resist that impulse. The position statement is the first piece of evidence the agency will see, and anything inconsistent with it later will be used against the company in front of an investigator, a mediator, or a jury. Take the time to investigate first. Pull the personnel file. Talk to the supervisors. Look at the timeline. Then write the statement.
Do not retaliate, and be careful about anything that could look like retaliation.
Once a charge is filed, the employee is in a legally protected category for retaliation purposes regardless of whether the underlying discrimination claim has any merit. A poorly timed performance review, a schedule change, a denied promotion — anything adverse that happens after the charge needs a clean, documented, pre-existing reason. Otherwise the company has just turned a weak claim into a strong one.
Texas at-will employment is a defense, not a magic shield.
“We could fire her for any reason” is true under Texas law as a starting principle, but it is not a defense to a discrimination charge. Title VII, Chapter 21 of the Texas Labor Code, the ADA, the ADEA, and a handful of other statutes carve out specific protected categories where “any reason” is not enough — race, sex, age, disability, religion, national origin, and a few others. The reason still has to be a permissible one, and the company still has to be able to articulate and document it.
Documentation written today is far more valuable than documentation written next year.
By the time a case reaches a jury, the employer is usually trying to reconstruct why a decision was made eighteen months earlier. Memory fades, supervisors leave, and contemporaneous notes become irreplaceable. The single most useful thing an employer can do — both in this case and in every personnel decision going forward — is to document the reasoning at the time the decision is made, not after a charge gets filed.
Most charges do not become lawsuits, but the ones that do tend to be expensive.
The EEOC dismisses or finds no cause in the majority of charges it processes. The right-to-sue letter follows, and many employees do not pursue further. But the cases that do go forward into federal court can run six figures in defense costs, and verdicts under federal employment statutes carry attorney’s fees that can dwarf the underlying damages. The work of defending well at the agency level is also the work of preventing the lawsuit, and it is almost always money well spent.
The strongest defense to most employment claims is built before the charge is ever filed — in the policies, supervisor training, and personnel documentation that exist in the company’s day-to-day operations. If a charge has just landed, do the careful work to defend it. If one has not, this is the moment to look hard at what would happen if one did.
If you are an employer in Texarkana, Bowie County, or the broader Ark-La-Tex region facing a charge or thinking about prevention, Jeff Elliott Law Firm is happy to talk it through.