Synopsis of the Investigative Process
Intake is the most crucial point in the entire process. It is the point at which we determine whether the complaint has enough information for us to accept it procedurally (within applicable statute of limitations period) and substantively (alleges a basis covered by federal or state law).
It is also an important stage because all notification to the parties emanates from the Intake Officer and (s)he is the first point of contact for the parties. The Intake Officer sets the tone for the rest of the complaint process, must be mindful of time constraints, and makes sure the Compliance Officers have a secure foundation in the complaint basis.
Included in this binder is a copy of the letter that is sent to a person wishing to file a complaint, the actual complaint form, and a 212 Form. The 212 Form is what we send to the EEOC (in employment cases) to notify them that we have received a complaint which falls under its purview and that we intend to take initial investigative responsibility. This insures that the EEOC does not conduct a dual investigation, and protects the Complainant's rights on the federal level:
Mediation is the first step in the complaint resolution process. We offer this forum to the Complainant and Respondent to potentially obviate the need for a lengthy investigation. If the parties agree to the mediation, we will set a mutually agreeable date and confirm it with the parties. The process is totally voluntary and has helped the Council dispose of several complaints that would otherwise be in the investigation inventory.
Mediation is not a fact-finding forum; therefore, we notify parties that attorneys may be present, but only in a silent, advisory role, except in private, confidential sessions. The parties are introduced to the concept of mediation in time to make an informed decision about participation. All information discussed and written during the mediation remains confidential and is destroyed at its conclusion.
All staff members were formally trained in mediation techniques in January 1995, and the policy was instituted on February 1, 1995. In addition, the two Compliance Officers have received general, as well as advanced, mediation training, between 1992 and 1995. The Intake Officer also assists in conducting the mediation. A copy of the mediation fact sheet sent to the parties is included in this binder.
Should the parties not wish to participate in mediation or if the mediation process does not produce a resolution, the case moves to investigation. To maintain the confidentiality of the mediation, the Compliance Officer who did not conduct mediation receives the case for investigation.
This is the point at which the Compliance Officers review documentation and witness affidavits, conduct on sites, analyze the evidence, apply the applicable law, and reach a determination based on the preponderance of the evidence. A copy of the Respondent Contact Form, Document and Information Requests, and a Case Monitoring Sheet is included for your information. The Compliance Officers also attempt to conciliate the case (differs from mediation) if the parties are amenable to the option. Conciliation differs from mediation in that conciliation efforts take place and is most successful after some kind of fact or fault finding has occurred. Respondents are more conciliatory when they are shown that any part of their business practices is suspect.
If a conciliation is not reached, the Compliance Officers will issue a Basis for Determination, which outlines in detail all of the procedures followed during the course of the investigation. A copy of the determination letters and appeal letter is included in the binder, along with a copy of the form we submit to the EEOC when case files are mailed.
The Assistant Attorney General reviews the determination to make sure that the Compliance Officers' decisions are in accordance with the applicable law. Once that determination is made, the Director signs the determination, the original goes to the Complainant, and copies are sent to the Respondent and the case file.
If the Complainant disagrees with the Director's decision, the Complainant may make a written appeal to the Chairperson within 10 working days after (s)he receives the determination. The Complainant is normally granted an appeal and a date is scheduled for the appeal to take place. As a formality, notice of the appeal is sent to the Respondent. Respondent plays no part in the appeal process.
The Council confirms the appeal date with the panel of Council members who are to sit for the appeal. The Complainant is reminded that (s)he must not present new evidence, but show that based on the evidence presented during the investigation, the Council should have found in his/her favor. A copy of the appeal letter is included for your review.
After the panel hears the appeal, the panel must make a decision within 30 days after the appeal is heard and provide notice to the parties of its decision. If the panel votes to overturn the Director's decision, the case goes back to the Compliance Officer for re-investigation, based on the panel's recommendations. If the Council votes to affirm the Director's decision, the case is officially closed.
When conciliations efforts fail, the Director shall set the matter public hearing or refer to the case to the applicable federal agency. Hearing forum comes into play after there has been no conciliation after the determination phase, and the Director issues a cause finding.
The spirit of the worksharing agreement with the EEOC requires that the Council exercise its state law to its fullest extent before a referral takes place. Therefore, the public hearing process has been and continues to be a very vital part of the investigative process in those cases where reasonable cause to believe the Virginia Human Rights Act has been violated is found.
A date is set by the Council for the hearing. A hearing officer is pulled from the Virginia Supreme Court's list of available hearing officers. Space is secured through the General Assembly Building, and all parties are given notice of the date and time of the hearing. A court reporter is present during the hearing.
The hearing is held with the attendance of both parties being required. The hearing officer hears the evidence presented and renders an opinion. The opinion is then reviewed by the Council members and it is their responsibility to secure a majority to either agree or disagree with the hearing officer's opinion. Section 12(B) and (C) of the Regulations outlines the Council members options.
Section 11 and 12 of the Regulations explains the procedure in detail. A copy of the Act and Regulations are included for your information. The Council members play a very important part in this process because the Council members must make a decision either to affirm or refute the hearing officers decision. It is at this point that the Complainant and Respondent review the Council's investigative procedures very closely to determine whether the Council understands the gravity of the charge and the law.
At this point, all administrative appeals and hearings have been conducted and concluded. The case goes into the Council's closed files. Notification goes to the EEOC, if the case has been dual filed with that entity. The Case Monitoring Sheet is completed once the case is dosed.
It is at this point that the Washington Field Office and the Baltimore District Office assign contract credit for those cases which meet with their approval in terms of the investigation process. If the investigation meets with the EEOC's approval, the Council is given substantial weight credit for the case and we receive a form from the EEOC indicating such. A copy of the form sent with the case files to the EEOC is included in the binder. In addition, a copy of the Council's being granted Fair Employment Practice Agency (FEPA) status is included for your information.