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Res 009-84 1/17/1984RESOLUTION NO. 9-84 RESOLUTION APPROVING THE PROCEDURAL MANUAL OF THE WICHITA FALLS HUMAN RELATIONS COMMISSION. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS , TEXAS, THAT: The Procedural Manual for the Wichita Falls Human Relations Commission, a copy of which is attached hereto, is approved. PASSED AND APPROVED this the 17th day of January, 1984 . M A Y O R/ / // 7 ATTEST: J447)14 City Clerk 1 I. INTRODUCTION A. The Human Relations Commission of the City of Wichita Falls is enabled by City ordinances to supervise the enforcement of Ordinances 2-83 , 3-83 , and 4-83 . These ordinances relate to housing, public accommodations, and employment. The HRC shall have an ordinance enforcement committee to deal solely with enforcement of these ordinances. B. There shall be an administrator employed by the City of Wichita Falls. This person or his/her surrogate shall evaluate and investigate all allegations of discrimination as defined by City ordinance and in accordance with the state law known as H .B. No. 14 , passed during the 1983 special legislative session. The administrator shall maintain complete and accurate records of all business conducted in the name of the HRC. These records shall be kept in a confidential file. These records shall be recorded on appropriate and designated HRC forms . All notes made by the administrator/surrogate shall be kept as part of the permanent record. A formal log shall be kept of all contacts by complainants with the administrator . This log shall be independent of validity of allegations. C. The administrator, as a City employee, shall be legally accountable to his department head and/or the City Manager. However, the administrator shall maintain a continuing working relationship with the HRC, the HRC Chair and the HRC Executive Committee. The Page 2 of 82 Pages Agenda Item No (p, c. administrator is empowered to determine by all means at his disposal the validity of all allegations. The administrator shall adequate documentation of jurisdiction/non-jurisdiction and applica- bility/non-applicability of the appropriate City ordinances in each alleged complaint. The administrator shall review in an ongoing manner all allegations with the HRC Ordinance Compliance Committee Chair. The administrator shall meet monthly with the Ordinance Compliance Committee in review of all complints. The administrator shall each month send a log of all complaints to the HRC Executive Committee. This log shall state allegation, date of allegation, and disposition. This log shall include all complaints independent of jurisdictional validity, ordinance applica- bility and outcome. The investigator shall not investigate problems relating to any aspect of the human condition except to determine jurisdiction, ordinance applicability and validity of allegations. The investigator/administrator shall pursue all valid allegations to closure. Page 3 of 82 Pages Agenda Item No to, c. WICHITA FALLS HUMAN RELATIONS COMMISSION PROCEDURES MANUAL The purpose of this manual is to provide a step-by-step description of the procedures employed by the Wichita Falls Human Relations Commission in processing complaints filed under Title VII of the Civil Rights Act of 1964 , and the City' s fair employment, fair housing , and public accommodations ordinances. This manual is designed for the benefit of Human Relations Commission members, City staff, the City Manager, and the City Council in tracing and knowing the complaint processing system. This manual is divided into five sections. Sections One and Two describe the preliminary steps of the complaint process, including jurisdictional considerations, intake interviews, and charge drafting and processing techniques . Section Three discusses the settlement process, including, the theories behind a negotiated settlement and negotiating techniques. Sections Four and Five outline the actual investigation and conciliationog process . Page 4 of 82 Pages Agenda Item NO. to c, SECTION 1 INTAKE PROCEDURE Page 5 of 82 Pages Agenda Item No. tp,c• s. SECTION 1 . INTAKE PROCEDURE The intake system is the first step in the procedural handling of a discrimination complaint . The intake procedure is designed to speed up processing of charges so as to quickly ascertain the substantive merits of a case and thereafter to arrive at a speedy and fair disposition . The purposes of the intake procedure are to: (1) screen out complaints which fail to come within the jurisdictional limits of the ordinances ; 2) screen out non-meritorious complaints ; (3) complete a comprehensive interview with the Charging Party; (4) define the scope of the investigation; and (5) formulate a basis for settle- ment of the charge . The intake system is composed of three steps , including the Initial Interview, the Filing of a Complaint, and Post-Charge Counseling . The Administrator of the Human Relations Commission is charged with the responsibility of guiding the complainant through intake process in order to effectuate the purposes of the intake procedures . Initial Interview The primary purpose of the initial interview is to gather as much information from a potential charging party who believes he has been aggrieved by a discriminatory housing , employment, or public accommodation practice concerning the complaint. The information gathered at this interview will be used to determine 2 Page 6 of 82 Pages Agenda Item No. to.c, t the jurisdictional and substantive merits of a charge . If it is determined at the initial interview that the complaint does not meet the jurisdictional requirements for processing a discrimina- tion complaint, the Potential Charging Party will be so informed. I . Jurisdictional Merits . The Human Relations Commission is mandated to handle complaints which meet the jurisdictional requirements of anti- discrimination ordinances . A. Time Requirements 1 . All discrimination complaints must be filed within 180 days from the alleged discriminatory act. (This date may, for example, be the dateof discharge or date on which a landlord refused to rent an apartment. ) 2 . In Employment Discrimination cases, the correct date to determine the timeliness requirement would be the date the employee/employer relation was severed irrespective of any suspension or advanced notice of discharge . 3 . In rare situations, the jurisdiction requirement may be "tolled" . This situation is limited to the case in which the time spent incapacitated may be subtracted from the total 3 Page 7 of 82 Pages Agenda Item No. i0 .F, time between the date of the alleged violation and the date of filing a charge . B . Exempt Organizations and Practices--Employment 1 . In order to process a charge against an employer, such employer must have 15 or more employees for each working day in each of 20 or more calendar weeks in the current or proceeding calendar year . 2 . The Human Relations Commission cannot process a charge against the government of the United States, the State of Texas, or other cases covered by a worksharing agreement with the Area Office of the Equal Employment Opportunity Commission . 3 . Employers , labor unions , and employment agencies may hire and employ employees , to classify or refer for employ- ment individuals on the basis of religion, sex, national origin, age, or handicap if such is a bona fide occupational qualification reasonably necessary to the normal operation of the business or enterprise . 4 . C ertain organizations, such as religiousious educa- tional institutions and religious corporations may be exempted from provisions of the Employment Discrimination Ordinance so as to allow these organizations to discriminate on the basis of religion if the curriculum or activities of the organization is directed toward the propagation of a particular religion. 5 . Other minor provisions of the employment . ordinances exclude certain practices and organizations . The Administrator is responsible for knowing these provisions . Page R of 82 _ Pages Agenda Item No. 10 ,.x, 4 C . Exempt Organizations and Practices--Housing 1 . A single-family house sold by the owner is not covered by the Fair Housing Ordinance, provided that the owner meets certain qualifications . The Administrator is responsible for knowing these qualifications . 2 . A person owning and operating a housing accom- modation in which rooms are rented, may rent rooms to persons on the basis of sex, if the accommodation contains common lavatory, kitchen or similar facilities . 3 . Private clubs , which are also tax-exempt, are excluded.it 4 . Religious organizations , which own non-commercial housing accommodations , may discriminate only on the basis of religion. 5 . Adult-only complexes or units are permissible, provided there is no exclusion based on race , color, religion, sex, national origin, or physical or mental handicap . 6 . A residential unit designed and operated exclusively for senior adults and their spouses is permitted under the terms of the Fair Housing Ordinance . D . Exempt Organizations and Practices--Public Accommodations 1 . The Government of the United States and the State of Texas , including Midwestern State University, are not covered under the Municipal Public Accommodation Ordinance . Page 9 of 82 Pages 5 Agenda Item No . ,O.c. 2 . Bona fide private membership establishments are also excluded . II . Substantive Merits A. In addition to meeting the jurisdictional require- ments, an allegation of discrimination must meet certain substantive requirements . The charging party must be a member of a protected class , and the complaint must contain an allegation of personal harm. 1 . The Employment Discrimination, Public Accom- modation, and Fair Housing Ordinances of the City of Wichita Falls prohibits discrimination on the basis of: a . sex b . race c . national origin d . color e . age f . physical handicap g . mental handicap B . Personal Harm 1 . A charging party must demonstrate that he has suffered personal harm as a result of the respondent's actions . Examples of personal harm might include paying members of one sex more than members of the other sex for doing the same work; refusing to hire individuals on the basis of race; or refusing to rent to individuals on the basis of sex . 2 . The individual who has suffered the personal harm must be the individual who files the charge . III . Processing Initial Inquiries The Administrator will log all initial inquiries on the appropriate log form. Page 10 of 82 Pa es Agenda Item No. fp . . 6 A. Phone Inquiries 1 . The Administrator will provide preliminary basic screening to inquiries made by phone in order to determine if the caller is concerned with a problem covered by the Commission . If the caller has called the Commission about a problem not related to the functions of the Commission, the Administrator shall courteously inform the caller that the Commission has no jurisdiction in these areas , and if possible, refer the caller to the appropriate agency . 2 . The Administrator will elicit information which is minimally necessary to determine whether the complaint is re- lated to the Commission. The Administrator should ascertain whether : a . the issue is related to employment, housing, or public accommodation . b . basic jurisdictional prerequisites are present . c . there is an unlawful basis of discrimination e .g . sex, race, age) . d . the individual has suffered personal harm. 3 . When the problem very clearly fails to meet the jurisdictional or substantive requirements , the Administrator should provide the caller with the reason as to why the Commission is unable to assist in the matter, and if possible, refer the caller to an appropriate source . a . For example, if the caller states that dismissal suffered two years ago may have been discriminatory, and that there has been no further contact with the employer or any 7 Page 11 of 82 Pages Agenda Item No. I` other related harm which may have been suffered in the interim, the Administrator should advise the caller of the time limit for filing a charge; or, b . If a caller states that he was denied employ- ment because of his sexual orientation, the Administrator should advise the caller that the Employment Discrimination Ordinance does not protect a person from being discriminated against on the basis of sexual orientation . c . Whenever possible, the Administrator should provide the caller with a referral to another potential source of assistance . In all cases , the Administrator must complete the Charge and Inquiry Analysis" so that it may later be reviewed and maintained for statistical compilation . d. If the caller describes a situation which does meet all the jurisdictional and substantive requirements , or if there is any doubt as to any of these issues , the Adminis- trator should advise the caller to visit the office in person to continue interviewing. B . Mail Inquiries If the complainant initially contacts the Commission by mail, describing a potential discrimination charge , the Administrator will contact the complainant by telephone and follow the above procedures . C . Walk-In Inquiries If the party claiming to be aggrieved visits the office , the entire interview will take place at that time, or an Page 12 of 82 Pages 8 Agenda Item No. g).c. appointment will be given . IV. Interviewing Techniques To conduct an effective interview, the Administrator must be able to deal with the many characteristics and attitudes that the potential charging party may display . The following is a brief description of some conditions of which the Administrator must constantly be aware . A. The Administrator 's Attitude 1 . The Administrator must maintain a highly professional attitude . This does not mean that he must be cold or unfeeling , but rather, that he must maintain control of the situation, must not voice value judgments, nor should he reveal personal reaction to the party . 2 . Nevertheless , the Administrator should convey empathy and an understanding of the party ' s problems . This will facilitate the interviewing process in that the potential charging party will feel more relaxed about talking . 3 . The Administrator must be impartial as befits . a neutral investigator charged with the task of investigating an alleged violation of the law. The Administrator must exercise extreme care to facilitate his being perceived as impartial. 4 . The Administrator is charged with the responsibility of knowing the provisions of the discrimination ordinances and the provisions of this procedural manual . The firmer the Administrator ' s knowledge, the easier it will be to display a professional attitude . Page 13 of 82 Pages Agenda Item No. 'DJ.9 S B . Charging Party ' s Attitude 1 . The Administrator must remember that the party may have recently undergone an emotionally traumatic experience . As a result, the party may be angry and may view the Administrator as another antagonist. 2 . The party may easily become impatient and demand action immediately . The party will often be uninterested in legal niceties or workload problems . The Administrator must explain the need for basic data and the reason for the Commission procedures . 3 . The party may exaggerate, believing that it is necessary to convince the Administrator that the party deserves help. The party will often present conclusions instead of facts . Factual questions may be viewed as challenges to the party' s honesty and veracity. 4 . The party may resist revealing information which he believes is contrary to the case . The Administrator must elicit all information, regardless of the potential damaging effect . 5 . The charging party may want to know if the allegation has merit. The Administrator must, at a later time, make this evaluation . This evaluation obviously needs to be made at a time other than the initial interview. The Administrator must take care to avoid characterizing the merits . The role of the Commission is that of a fact-finder, and the Administrator Page 14 of 82 Pages Agenda Item No. ,p,f 10 1 must maintain an impartial attitude . 6 . The party will be unfamiliar with Commission procedures . The Administrator should not attempt to explain all these procedures at once . When the procedure in question is being discussed, however, the Administrator should provide the explanation . C . Controlling the Interview In order to avoid wasting time and to make sure that all necessary information is obtained, the Administrator must maintain control of the entire information-seeking process . Although the party must be allowed an opportunity to speak freely, the Administrator must control the interview by asking questions in a patterned and systematic way . The Administrator must gather all information expeditiously, and at the same time, insure that nothing significant is missed . It is important for the Administrator to appear confident and competent in order to increase the chances of the party yielding to the Administrator ' s guidance . V. Recommendations Once the Administrator has gathered enough infor- mation to thoroughly understand the complaint, he will recommend to the charging party whether a charge has merit . Recognizing situations in which filing a charge should or should not be recommended is one of the most important roles of the Administrator, and he should exercise a high sense of discretion in carrying out that role . Page 15 of 82 Pages 11 Agenda Item No. (0.-. A. Charge Recommendation 1 . If the Administrator determines that the complaint meets all the jurisdictional and substantive require- ments, and that the complaint has a potential of resulting in a cause determination, he should definitely advise the charging party that the charge appears to have merit . 2 . If there is any doubt as to whether the complaint meets the basic requirements as to the substantive merits of a complaint, or if the charging party insists upon filing, the Administrator should allow the charging party to file a charge , especially if the Adminiatrator feels that these doubts may be dispelled by collecting further information . An example of this situation would be a female who describes a situation where she was next in line for a promotion, but was told that because her sales record was not up to par, someone else, a male, was given that promotion . A lower sales record may establish legitimate reasons for not promoting someone, but the Administrator must have comparative data to decide whether she actually did have a lower sales record and whether the difference in those records is enough to justify a failure to promote . B . No-Charge Recommendations 1 . If the Administrator determines that the complaint very clearly lacks the jurisdictional or substantive requirement, he should advise the charging party . Page 16 of 82 Page Agenda Item No. (0. 12 For example , if the party is employed by a company which employs less than fifteen employees , the Administrator should inform the party that the Commission is not authorized to take charges against the company and should advise the charging party to follow any internal complaint procedure in existence . 2 . If the complaint very clearly lacks a basis on which to file a formal charge, the Administrator should also advise the complainant that the complaint lacks substance . These situations may be difficult to discern and the Administrator should be absolutely positive that the complaint lacks a basis to file a charge before he makes this recommendation . For example, if the complainant says he was discharged for excessive absenteeism, and he admits being excessively absent, and if the charging party knows that no one else in his department has been absent as much as he, then obviously there is no basis for the charge . An employer may discharge an employee for any reason not covered by law, and unless the complainant can establish some basis to believe that he was illegally discharged, a no-charge recommendation should be made . 3 . A party claiming to be aggrieved has a right to file a formal charge against a respondent, despite the Administrator ' s recommendations , if and only if all jurisdictional requirements are met . If that situation occurs, the Administrator is required by law to process a charge . Page 17 of 82 Pages 13 Agenda Item No. 1D. C. Filing the Charge: A charge is an official action taken by an aggrieved party against a respondent allegaing unlawful discrimination . The charge must be perfected to meet all technical and legal requirements . Since a charge cannot be processed unless it is perfected, it is important that the Administrator be thoroughly familiar with the process of perfecting the charge . VI . Forms Used* This section will be drafted after the appropriate forms have been developed . ] VIII . Drafting the Charge A. In General 1 . Charges filed by a complainant must provide notice to the respondents of the precise nature of the individual ' s claim. A well-written charge will indicate to the respondent the strength of the claim and the nature of relief to which the individual may be entitled . A well-drafted charge also provides a basis for rapid investigation by interrogatory, a coherent fact finding conference, and resolution through settlement procedures . 2 . The Administrator has the primary responsibility for drafting the charge . Charges drafted by the complainant are usually unperfected, since the complainants are usually unfamiliar with the technical requirements of a perfected charge . Therefore, the Administrator must obtain all the necessary Page 18 of 82 Pages Agneda Item No. 14 MMMMW information to draft a charge which can be considered perfected . 3 . The charge should be written in clear language that is understandable to the charging party, and to the respondent. The use of technical language should be avoided wherever possible . The charge should be a concise statement of the essential information, the length of which will vary according to the number and kinds of allegations . B . In Particular The Commission has adopted the format recommended by the Equal Employment Opportunity Commission . This format provides a well-organized and systematic means of presenting the allegations . The format includes : 1) statement of personal harm . 2) statement of reasons given by the respondent to the complainant for the alleged discriminatory act. 3) statement of the complaintant' s reasons for believing the harm was caused by discrimination . Within each statement, allegations of fact should . be stated separately . This will establish a basis on which to formulate interrogatories and will outline the context of the investigation . These three categories of a charge should contain the following information: 1 . Personal Harm a . The statement should specify the loss incurred and the date . Page 19 of 82 Pa es Agneda Item No. 10, V,15 Examples : 1) I was discharged from my job as a Technician on 11-13-82 . 2) I was refused the rental of an apartment on 11-13-82 . 3) I was asked to leave respondent 's premises on 11-13-82 . b . The statement should state briefly the charging party's history with the respondent . (This statement may not apply to public accommodations or housing cases . ) For example : I have been employed by Lewis Brothers , Inc . , since 10-1-79 . I was never informed that my job performance was less than satisfactory. c . Included in the statement describing the charging party 's work history with the respondent, a statement should be included which indicates to the extent possible, how many of charging party ' s class are employed and in what jobs . three Blacks in a departmentexample, I am o ne of p artment of 20 employees . All Blacks in the department are Technicians I , the lowest in the technician scale . " (This information is usually unavailable or irrelevant in public accommodations and housing charges . ) 2 . Respondent' s Reasons for Adverse Action a . This should include a statement of respondent's policy or reason given for the action which caused the adverse effect. For example: Page 20 of 82 Pages Agenda Item No. ‘o. c. 16 1) I was told that it was company policy to discharge employees who came late to work more than three times . 2) I was told that the apartment in which I was interested had already been rented . 3) I was asked to leave the premises because of respondent' s dress code, which disallows wearing denim jeans . b . The statement should identify the person and that person' s position whose decision caused the personal harm. 1) Mr . Davis , the department director . 2) Mr . Davis , the apartment complex manager . 3) Mr . Davis , the bartender . 3 . Statement of Discrimination a . This statement should include the facts which lead the complainant to believe that the harm suffered is discriminatory, including comparisons with other employees , renters or partrons . For example: "I believe I was discriminated against because of my . . . (race, religion, sex, . . . ) inasmuch as : 1) Employees , John Doe and Joe Doe, white males , have been late to work more than I have but have not been discharged. 2) Susan Lessor, white female, was allowed to rent the apartment after I was told it had already been rented . 3) Several white patrons at Donny ' s Disco were wearing blue jeans, but were not asked to leave the premises . b . The Administrator should make note of any unknown information and draft the interrogatories accordingly. Page 21 of 82 Pages Agenda Item No. 10,c, 17 I Post-Charge Counseling : Once the charge has been drafted , signed by the charging party, and attested to by a notary public , the Administrator must explain to the charging party the remaining procedures . The Administrator has already explained some of these procedures during the interview, but post-charge counseling affords another opportunity to explain these procedures thoroughly, thereby strenthening the charging party ' s understanding of how the system operates . Post-charge counseling prepares the charging party for the subsequent stages of the processing system, the most important of which are settlement and Fact- Finding Conference . VIII . Counseling About Settlement Early resolution of charges through settlement is a Commission priority . It will eliminate the necessity of long and often exhaustive investigative procedures and at the same time, it will provide a mutually satisfactory solution for the charging party and the respondent . The success of such early resolution may depend upon the effectiveness with which the Administrator counseld the charging party about the process See Section 3 for a full discussion of settlement process) . A. In General 1 . The Administrator should define the concept of settlement and outline its purpose using non-technical and 1 comprehensible terms . That is, the Administrator should make sure that the party understands what a settlement is, and how it functions in the process . Page 22 of 82 Pages Agenda Item No. ro. c 18 2 . The Administrator should inform the charging party of the consequences of a settlement . 3 . The Administrator should point out the advantages , both to the charging party and to the respondent, of early settlements . The charging party should understand that a settlement provides definite benefits whereas a full investi- gation may result in an angry refusal to provide benefits by the respondent. B . The Administrator ' s Role The charging party should be assured that the Administrator will assist the party in an effort to obtain equitable benefits and that the Administrator will counsel the charging party on all matters . C . The Charging Party ' s Role 1 . Although assisted and counseld by the Administrator, the charging party should understand that he makes the decisions about proceeding to settlement and about the terms of agreement . 2 . The charging party, however, should also know that settlement requires some degree of compromise . Both parties will have to forego certain benefits in order to get something else they value more . 3 . The Administrator should explain clearly that the charging party cannot recover, either through settlement, or a full investigation, any more than the charging party has lost. At times, the charging party will want extreme recovery Page 23 of 82 Pages 19 Agenda Item No. _!Q terms, proportional to his feelings . That may be understandable; however, the Administrator should point out that the laws under which the Commission operates do not provide a remedy for pain and suffering and that all benefits are limited to the actual employment loss . 4 . The Administrator should assist the charging party in establishing maximum and minimum amounts of settlement. By referring to the information acquired, the Administrator can estimate the maximum recoverable amount . By consulting with the charging party, the Administrator and the charging party together can establish a minimum amount . The Administrator should emphasize that the maximum amount will be sought, but there must be a bottom line" amount, which allows a range within which to negotiate . 5 . At the very least, the Administrator should cause the charging party to consider a negotiated settlement. IX . Counseling About Fact-Finding Conference Fact-Finding Conference usually follows the charge process if no settlement is reached . The Administrator must explain the conference procedure and quell any potential apprehen- sion the charging party may feel . (See Section 4 for a full discussion of the Fact-Finding Conference) . A. The Nature of the Fact-Finding Conference 1 . The Administrator should explain that the Fact-Finding Conference is, as the name indicates , a forum in which Page 24 of 82 Pages Agenda Item No. 0. c, 20 facts will be ascertained . It is not a trial or hearing, and no one will be put under oath or cross examined . 2 . The charging party should be aware that certain documents will be submitted for the Commission ' s inves- tigation file, but that neither party will be allowed to inspect the other party ' s documents . 3 . The Administrator should point out that a settlement will most likely be discussed during the conferences and that the party should think about the settlement alternatives previously discussed . (This may be an opportunity for the Adminis- trator to review the pros and cons of a negotiated settlement. ) B . Reassuring the Charging Party 1 . The charging party may be apprehensive about meeting face to face with the representatives of the respondent . The charging party should be informed that the laws provide protection from retaliatory action . 2 . The charging party may obtain the services of an attorney, although such services are not necessary and most charging parties do not acquire such service . 3 . In addition to an attorney, the charging party may choose to have a friend or relative for moral support. No one may speak on behalf of the charging party; however, witnesses for either party are usualy not allowed to attend the conference . C . Setting the Time 1 . Attempts will be made to conduct the conference at a time convenient to both the charging party and the respondent. Page 25 of 82 Pages Agenda Item No. 10.c 21 The Administrator should establish the times during which the charging party is available . 2 . The charging party will be informed of the time of the conference well in advance . 3 . The Administrator must emphasize the importance of attending the conference on the date specified . If the charging party cannot attend the conference, he should notify the Administrator immediately . XI . Counseling About the Charging Party ' s Responsibilities A. Changes in Address The Administrator must stress that the charging party is responsible for notifying the Commission of any changes in address or telephone number . B . Documentation If the charging party has agreed to supply any documentation for inspection, he should be reminded to provide these documents at the agreed time . The Administrator may find it advantageous to supply a written list of requested documents to the charging party. C. Cooperation In short, the Administrator must emphasize the importance of full cooperation . The Administrator should remind the charging party that the Administrator will do everything possible to help the charging party achieve a fair and equitable solution, but that the Administrator must have the charging party ' s cooperation . Page 26 of 82 Pages Agenda Item No. lo.k22 XI . Counseling about Deferrals If the charge will be deffered to the Equal Employment Opportunity Commission, the complainant should be so informed . The Administrator should explain the EEOC procedures , emphasizing again, the need for cooperation with that office . XII . Counseling About Other Matters A. Charging Party ' s Rights 1 . The charging party should know the appeals procedures provided by law. 2 . The charging party should know that he has the right to ask for a right to sue request . 3 . The charging party has the right to terminate the entire proceedings at any time . 4 . The charging party should know his option for court action. B . The Extended Investigation The Administrator should briefly discuss the rest of the process , including investigation, letter of determination, conciliation conference, and termination . XIII . Concluding the Interview r should provide the partyAdministratould0PPY with a final opportunity to ask questions . A copy of the charge and all appropriate information pamphlets should also be provided . In addition, the Administrator should review the check list before the charging party leaves . This will conclude the entire intake procedure and the Administrator will begin processing the charge . Page 27 of 82 Pages 23 Agenda Item No. to ,c , s' • SECTION 2 CHARGE PROCESSING Page 28 of 82 Pages Agenda Item No: 10,E lid SECTION 2 . CHARGE PROCESSING I . Introduction Once a charge is filed, it must be processed in accordance with certain procedural standards adopted by the Commission . These standards are designed to meet the legal and technical requirements of all the applicable laws and regulations . For example , the laws require that the respondent be notified that a charge has been filed against their organization within 10 days of filing . In addition, it may be necessary to dual file a charge withthe Equal Employment Opportunity Commission or to defer a charge to the EEOC . Failure to comply with these and other regulations may seriously jeopardize the rights of both the charging party and the Commission, and, therefore, it is of utmost importance that the Administrator execute the charge-processing system carefully and expeditiously. II . Administrative Closures An administrative closure is an action taken by the Administrator which terminates the case before he arrives at a determination . The Administrator has the sole authority and responsibility to administratively dismiss a case, although he will report this action to the appropriate committee of the Commission. The reasons for an administrative closure include voluntary withdrawals , failure to cooperate or locate, failure to Page 29 of 82 Pages Agenda Item No. 10. c. 2 meet the jurisdictional requirements and failure to meet the substantial requirements . A . Voluntary Withdrawals 1 . Throughout the entire compliance procedure , the charging party has the right to voluntarily withdraw a charge . 2 . If a charging party desires to withdraw the charge , the Administrator must complete the appropriate form. 3 . The request for withdrawal forms contain statements which inform the charging party of the protection against retaliation provided by the laws . a . The Administrator should insure that the charging party is aware of the protection. b . The Administrator should also make sure that the charging party' s decision to withdraw is not the result of harrassment or intimidation by the respondent. B . Failure to Cooperate/Locate 1 . The charging party is responsible for cooperating with the Administrator during the compliance procedure, and refusal to do so may constitute sufficient grounds for administra- tive closure . a . For example , if the charging party habitually misses appointments and meetings , such as Fact- Finding Conferences , without reason or notification, the Administrator shall promptly notify the appropriate committee of the Commission which may dismiss the case; or, b . If the charging party refuses to submit information necessary to proceed with an investigation, the Page 30 of 82 Pages Agenda Item No.r 3 Administrator shall notify the appropriate committee of the Commission, which may dismiss the case . 2 . The charging party is also responsible for keeping the Administrator informed of any change of address or telephone number . a . If the Administrator is unable to locate the charging party after a reasonable attempt to do so, by mail, telephone and in person, the Administrator will advise the appropriate committee of the Commission that an administrative closure is in order . b . If the appropriate committee of the Commission approves , the Administrator will issue a notice which provides 30 days within which the charging party may contact the office of the Administrator . c . If the charging party fails to contact the Administrator within the specified time, the charge is administratively closed . 3 . All attempts will be made to keep the charge open, but the Commission cannot proceed with a charge without the charging party' s cooperation . C . Charges With No Jurisdiction 1 . If a preliminary review reveals that a charge has been filed where there is no jurisdiction under the City ordinances , the charge will be dismissed . The Administrator will inform the respondent and the charging party of the action and the reasons for such actions . Page 31 of 82 Pages 4 Agenda Item No. vo j. 2 . The appropriate form will be completed so that all parties are informed of this action . Copies of the letter will be forwarded to the EEOC with recommendations for their dismissal . 3 . If the charge is dual filed with the Equal Employment Opportunity Commission, and the Equal Employment Opportunity Commission has jurisdiction, the charge will be deferred D . Settlement 1 . A charge is administratively closed when a settlement is reached before a determination. 2 . Again, the appropriate form is used to inform all parties involved . III . Deferrals and Dual Filing Certain charges must be dual filed with or deferred to the Equal Employment Opportunity Commission, and some charges filed with the Equal Employment Opportunity Commission will be deferred to the Commission . A charge requires significantly different processing in an area involving deferral . The Administrator is responsible for recognizing which charges require deferrals or dual filing and must process those charges accordingly . A. Concurrent Jurisdiction 1 . Charges which are initially filed with the Commission and which fall under the jurisdiction of both the Commission and the Equal Employment Opportunity Commission must be dual filed with the Equal Employment Opportunity Commission . Page 32 of 82 Pages Agenda Item No. lo, c,5 2 . The Commission, through its Administrator, must process and investigate these charges . 3 . The appropriate form is used to draft these charges . This form must be filled out by the Administrator . Additional information concerning forms will be provided after appropriate forms have been drafted . ) B . Deferrals--General Considerations 1 . Certain charges involving certain specific respondents will be referred to the Equal Employment Opportunity Commission . These charges include : a . Charges against the State of Texas , Agencies and Political Subidivisions thereof; b . Charges against the City of Wichita Falls ;Y c . Charges requiring subpoena or immediate injunctive relief; d . Charges against respondents outside the City limits of Wichita Falls . 2 . Although a charge may be filed with the Commission against these respondents , such charges must be deferred to the Equal Employment Opportunity Commission . 3 . No charges against the United States Govern- ment may be filed with the Commission . C . Deferrals Involving Uncooperative Respondents 1 . In dual filed cases , if a respondent refuses to accept a charge, refuses to provide necessary information, or Page 33 of 82 Pages Agenda Item No. t0,c,6 in any way refuses to cooperate in such a way that the investiga- tion is impeded, the Commission, through its Administrator, may defer the charge to the Equal Employment Opportunity Commission . 2 . The Equal Employment Opportunity Commission has III the power to subpoena information and provide injunctive relief . IV. Service of Charge As indicated earlier in this section, the respondent must be' notified that a charge has been filed against him within ten days of filing. In compliance with this requirement, the Administrator must prepare a service of charge packet and send it by certified mail to the respondent within the specified time limit. The material contained in a service of charge packet varies, depending on the type of charge. D . Problem Areas 1 . If the respondent refuses to accept the service of charge, the Administrator must try to contact the respondent by telephone or in person . The ten day service of charge requirement is satisfied, however, so long as the charge packet is post marked within ten days of filing . 2 . In Title VII cases , where a respondent refuses to cooperate, the right to process the charge may be waived to the EEOC, since that agency may use its authority to obtain injunctive relief and/or subpoena documentation necessary to make a final determination. 3 . In non-Title VII cases , where a respondent refuses to cooperate, the Administrator may choose to prosecute the respondent in municipal court under the provisions of the anti- discrimination ordinances . The Administrator also has discretion Page 34 of 82 Pages Agenda Item No . 10. c. to prosecute respondents for obstructing an investigation in Title VII cases . The decision to prosecute in municipal court for the obstruction of the investigation in a Title VII case may be in lieu of or in addition to deferring the case to the Equal Employment Opportunity Commission . Page 35 of 82 Pages 9 Agenda Item No . Io, c, SECTION 3 SETTLEMENT Page 36 of 82 Pages Agenda Item No. . f, SETTLEMENT I . Introduction A settlement is a voluntary resolution of a charge prior to the Commission reaching a determination through the Administrator . The purpose of a settlement is to resolve a charge , at the lowest cost of time and resources to the charging party and respondent. Therefore, the Commission, through its Administrator , will promote negotiated settlements with terms that are mutually acceptable to them. Voluntary settlements expedite the compliance procedure, thereby conserving scarce investigative resources and increasing the impact and effectivenss of the Commission ' s enforcement efforts . Hence , it is the policy of the Commission to encourage and provide full opportunity to the parties at each stage of the compliance procedure to reach a mutually satisfactory resolution of issues , as an alternative to formal investigation and litigation. A negotiated settlement is in the interest of all parties, including the charging party, respondent and the Commission . The charging party can obtain benefits without awaiting a determination on the merits of the charge . The respondent is relieved of the burden imposed by a time-consuming and possibly costly investigation . The Commission has the benefit of resolving a charge in a manner satisfactory to both parties with a minimum use of its resources . The probability of reaching a negotiated settlement Page 37 of 82 Pages Agenda Item No . c ,e, 2 will often depend on the negotiating skills of the Administrator . Therefore, it is imperative that the Administrator develop these skills and use them with utmost proficiency . The following provides the techniques for guiding the charging party and the respondent towards such settlements . II . Preparation of Parties Prior to Fact-Finding Conference A. Charging Party 1 . During post-charge counseling, the Administrator should discuss at length settlement possibilities with the charging party . This discussion should give the Administrator at least an idea of where the charging party stands in terms of settlement. 2 . It is highly recommended, however, that the Administrator meet once more with the charging party immediately before the Fact-Finding Conference . 3 . A meeting with the charging party before the Fact-Finding Conference should provide the Administrator with information regarding any new position the charging party may have taken since the intake interview and with an opportunity to once again emphasize the importance of settlement . B. Respondent I 1 . In many instances , the respondent will not have discussed the possibility of a settlement before the Fact-Finding Conference . 2 . It is recommended, however, that the Administrator contact the respondent before a Fact-Finding Conference if the 1 Page 38 of 82 Pages 3 Agenda Item No. 10 ,e, Administrator feels that the merits of the charge are strong , or if the respondent has shown a willingness to settle charges previously filed against him. 3 . It is possible , however, that the respondent may initiate the contact himself upon receipt of the charge for several reasons , ranging from a desire to express outrage to a need for another conference date . 4 . Unless the caller is so hostile that communica- tion is impossible, the Administrator should take this opportunity to open a discussion of settlement. This phone conversation, probably the first direct contact between the Commission and the respondent, should be used to make a firm but positive impression on the respondent. 5 . Whether the contact was initiated by the Administrator or by the respondent, the Administrator should begin by explaining Commission procedure, and the purpose of the Fact-Finding Conference . 6 . The employer will almost always want to discuss the substance of the case . The Administrator must decline to comment on the merits of the charge . 7 . To gauge the prospects for settlement, however, the Administrator should listen to what the respondent says . This will give the Administrator a sense of the respondent' s attitudes toward the charge and the charging party . 8 . The Administrator should ask whether the respondent has questions about the Commission procedures , and Page 39 of 82 Pages Agenda Item No. )p.c, 4 whether the request for information is clear . If the respondent seems cooperative, the Administrator might call attention to the text of the conference notice , stating that the issue of a reasonable resolution might be discussed and recommending that the respondent consider a settlement proposal . 9 . If the respondent is resistant, the Administrator should suggest that some mutually agreeable resolution may become apparent at the conference . 10 . In short, the issue of settlement must be intro- duced with utmost care, if indeed it seems wise to introduce it at all . The investigator will have to decide whether this maneuver is advisable . Many respondents need to see the Commission 's investigatory process at work before they are persuaded that settlement is a legitimate and desirable conclusion . III . Settlement Discussion During Fact-Finding Conference The Fact-Finding Conference offers the next opportunity to initiate negotiations . If prior contacts with the parties have revealed a willingness on both sides to negotiate, it may be possible to forego the conference and begin to work out terms of an agreement. In most cases , however, the Administrator shall begin the conference without any specific discussion of settlement except for the general encouragement to settle contained in the opening statement. Initial discussions are best done privately, e .g . , during breaks in the proceedings . The parties should be encouraged to negotiate together only when the fundamental terms agreeable to both have already been determined . Page 40 of 82 Pages Agenda Item No. te. c . 5 A. The Administrator ' s Role 1 . The role of the Administrator and of the Commission during the Fact-Finding Conference is that of a professional , impartial facilitator . The Administrator should encourage and assist the parties in reaching a voluntary settlement which they find mutually acceptable . 2 . While considerable effort should be made in attempting to achieve the objectives of voluntary resolution, the parties should never be forced to do so . The Administrator must take care to avoid making any statement which might be interpreted as a threat . 3 . The Administrator hopefully will succeed in at least getting something proposed that can provide the basis for discussion. The Administrator must take care to be patient, persistent, and responsive . The Administrator must maintain control of the conference and must be sensitive to the inclina- tions of both parties . 4 . The Administrator should initiate the dis- cussion. The Administrator should assist both the charging party and the respondent in formulating a proposal . B. Opening Statement 1 . The opening statement for the conference is given by the Administrator . This speech will urge the participants to consider settlement terms . It is not anticipated that par- ticipants will respond at this point. The participants still,. will probably be assessing the relative strength of their positions . Page 41 of 82__ Pages Agenda Item No. 10. c, 6 4 2 . The Administrator should be prepared to initiate the discussion, since both sides will probably be reluctant to yield and ground until they have a better under- standingstanding of the case . C . Intermission and Private Discussion with the Parties 1 . Both the charging party and respondent will be given the opportunity to make opening statements without interruption from the other party . 2 . After the opening statement has been presented, the Administrator should ask any questions he may have in order to insure that he has a clear understanding of the positions of the respective parties . 3 . When a natural moment for a break occurs , the Administrator should initiate a general discussion. By that time, the participants will have some sense of the case . a . The charging party will have heard the overall defense and perhaps seen certain documents submitted for the record. b . The respondent will have heard the charging party' s contention that the respondent' s actions have hurt the charging party . c . In short, both sides will have had some time to consider their respective positions . 4 . When a break occurs , the Administrator should talk with the parties separately . This should allow the parties to be more relaxed and candid . li Page 42 of 82 Pages Agenda Item No. fin, c, 7 5 . The Administrator should advise the P during Ppartiesdurintheseparate discussions that : a . If a settlement is reached, no determination on the merits of the charge will be made by the Commission. b . No prejudice to the parties shall result from either participating in or refusing to participate in settlement negotiations . c . Participation in negotiation will not be construed as evidence of violation or as a waiver of the right to a determination on the merits if settlement is not achieved. 6 . During the separate discussions , the Admin- istrator must be objective and non-partisan . 7 . The Administrator must take care never to predict the outcome or to make any statements which imply that the outcome is settled . The Administrator will , of course, have developed some idea about whose side is stronger . It is appropriate to put this estimate to use when guiding the parties toward settlement; it is totally inappropriate, however, to arrive at a determination of the merits at the Fact-Finding Conference . 8 . The Administrator should allow the parties to make up their own minds based upon factual information they can supply . The Administrator should remember that factual information can be an effective tool in bringing the parties . together . Page 43 of 82 Pages Agenda Item No. I0,c , 8 a . The Administrator can cite certain aspects of the actual case in persuading each side to consider early resolution. b . The Administrator may evaluate a case, but must stress that such opinion is based solely on the evidence thus far revealed. The Administrator , if he chooses to evaluate a case, must do so with extreme care . He must be impartial and factual . Moreover, he should stress that ultimately the final decision may be settled in the courts . c . The Administrator may indicate that the case has certain weaknesses or strengths . Hopefully, these observations may help the participants to evaluate their own positions . 9 . Other tactics which may be employed by the Administrator during these separate discussions include : a . Allowing the parties to ventilate their feelings in order to reduce the pressure or tension either party feels . b . Asking questions, rather then imposing personal terms or values . c . Searching for and floating alternatives which are reasonably acceptable . d . Paying attention to timing, since even the most attractive settlement terms may be rejected if offered at the wrong time . D. Closing Settlement Negotiations 1 . If the parties reach a voluntary settlement agreement, the Administrator should immediately prepare a written Page 44 of 82 Pages 9 Agenda Item No . (f. c, statement for execution by the parties . 2 . The Administrator should state that the Commission does not officially approve the settlement terms , but merely accepts that both parties have reached a resolution . 3 . A settlement agreement is drafted on the appropriate form if the charge is dual filed with the Equal Employment Opportunity Commission . 4 . If the settlement agreement involves a non- Title VII charge, the agreement must be drafted in accordance with the particular kind of charge alleged . 5 . If the settlement agreement involves monetary relief, then the charging party should complete and sign a Certificate of Receipt . 6 . The Administrator must prepare a settlement folder which includes copies of all the settlement forms IV. Negotiations After the Fact-Finding Conference In many instances , it is not possible to obtain agreements immediately . Negotiations that extend beyond the Fact- Finding Conference usually require the Administrator to relay terms back and forth between the parties by telephone . The Administrator must make sure he maintains the difficult balance between urging settlement and remaining impartial . The Administrator must never be coercive . Both the respondent and charging party are vulnerable to pressures Page 45 of 82 Pages Agenda Item No. 10 that make them inflexible . Neither one wants to agree to terms that may take more from them than they receive . Neverthe- less, the Administrator must advise the parties that, if settlement is desired, it is ultimately more beneficial to have a range of acceptable terms , thus allowing for compromise . V. Summary of Arguments in Favor of Settlement A. For the Charging Party 1 . Many cases not settled are dismissed . A dismissed case is a lost case . The practice continues , the respondent is vindicated, the situation does not improve . 2 . Case investigation is time consuming and the benefits are uncertain. 3 . In employment cases, a pending charge may delay re-employment or other job related progress . 4 . Even if the Commission makes a determination in favor of the charging party, he still may have to sue the respondent for relief . S . Settlement resolves the dispute and provides certain benefits . B. For the Respondent 1 . Defense of the charges is time consuming and expensive . 2 . Full investigation can disrupt business routine and spread knowledge of the charge . 3 . A cause finding could require a greater remedy . 4 . Settlement is not an admission. Page 46 of 82 Pages 11 Agenda Item No. f0, , f S . Thc charging party will be barred from suit on the issue if settlement is honored . 6 . Settling shows good will and improves the image of the respondent. C. For Both 1 . An employment charge which is settled may improve the atmosphere on the job and relieve tension. 2 . Public Accommodations , Fair Housing, and non-Title VII Employment cases which are not settled, will automatically be processed through the extended investigation system which requires a lengthier process than Title VII cases . VI . Legal Implications of Negotiated Settlement When the parties agree to a negotiated settlement, each party is giving up something of value . This kind of exchange makes the agreement a contract which is enforceable in court. The charging party gives up the right to sue in court and receive consideration in the form of a benefit (i .e . money, reinstatement, promotion) . The respondent confers a benefit on the charging party and in exchange receives a release of liability from the charging party . If the Commission is a party to the negotiated settlement agreement, then the Commission gives up its rights to process the charge further, including its right to sue on the charge in exchange for respondent' s promise to provide the agreed upon relief satisfactory to the charging party . If the settlement agreement is broken, then any person who has signed the agreement may enforce the agreement by a lawsuit . 12 Page 47 of 82 Pages Agenda Item No. e , C, A. Legal Implication of Commission Policy 1 . All the applicable statutes and ordinances encourage private settlement of disputes . The Commission, therefore , maintains a policy of searching for settlements that are agreeable to both the charging party and the respondent . 2. To facilitate these agreements, the Commission is not directly concerned with the merits of the charge . 3 . The Commission ' s role in settlement is limited to insuring that the agreement is satisfactory to both parties . 4 . The terms of the agreement that apply to the Commission are limited to: a . A promise not to process the charge further, but reserving the right to process like or related charges. b. An indication that the Commission has made no judgment on the merits of the charge. 5 . Since the Commission has not made a judgment on the merits of the charge, it allocates the primary responsibility of enforcing the agreement to the charging party. B . Extent of the Waiver 1. When agreeing to a negotiated settlement, the charging party gives up, or waives only the right to sue on the charge filed with the Commission. 2. The respondent may try to obtain a more extensive waiver of all future claims which the charging party might have against the respondent. Such a provision should definitely be discouraged. Page 48 of 82 Pages Agenda Item No. )D, c,13 3 . The Administrator should adivse the charging party about what is reasonable and about the consequences of a proposed agreement . 4 . In general , the Commission should not refuse to accept a settlement that is mutually agreeable to the parties , but the Commission should try to confine its participation to matters that arise under the laws and that are immediately at issue . VII . Suggested Terms of Settlement Note : Terms of Settlements are not limited to the following examples) A. Failure to Hire Cases 1 . An interview and serious consideration for the next appropriate job vacancy . 2 . Reimbursement for expenses incurred in applying for the job in dispute . 3 . Adjustment in job qualifications . 4 . Elimination of allegedly discriminatory test or other discriminatory device . 5 . Elimination of certain questions from application form. B . Failure to Promote Cases 1 . First consideration for the next appropriate promotional opportunity . 2 . Training in order to be eligible and qualified for promotion . Page 49 of 82 Pages 14 Agenda Item No. (0 ,c, - 3 . Development of a career path within the firm. 4 . Establishment of written, objective criteria for promotional jobs . 5 . Installation of a posting system. 6 . Installation of a centralized promotion file . 7 . Commitment to promote complainant upon completion of training, course work , increased productivity, improved atten- dance , etc . 8 . Probationary Promotion--i .e . three months before salary increase and a right to return to old job . C . Termination Cases 1 . Rehire or reinstatement to the next available or equivalent job . 2 . "Severance" pay, "vacation" pay, "accrued" pay or another acceptable definition of a dollar amount. 3 . A dollar amount may be offset by any income derived from other sources . 4 . Establish written performance standards and evaluations . 5 . Counsel employees as to what is expected and give warnings when they are deficient. 6 . Establish a rule where only the personnel director may fire an employee . 7 . Appoint an ombudsman for employee grievances . 8 . Letter of reference for complainant. 9 . Remove anv adverse documents or materials from personnel file . Page 50 of 82 PagesAgendaItemNo 15 VIII . Suggested Terms of Settlement Non-Employment Cases) Each charge involving Public Accommodation or Fair sin discrimination is so unique that a list of general terms Hou g however , should of settlement is impractical . The Administrator , be aware that the goal of any settlement involving these kinds of charges is to correct any on-going discrimination practice and to reach a mutual understanding between the respondent and the charging party which will reconcile any animosities arising thereof . fr Page 51 of 82 Pages 16 Agenda Item No. (D, c, f SECTION 4 FACT FINDING CONFERENCE Page 52 of 82 Pages Agenda Item No. ID, c, Fact Finding Conference I . Introduction The Fact Finding Conference constitutes an important component in the compliance procedure . Its primary purpose is to expedite the investigation of a charge by bringing the prin- cipal parties together to find out what happened and why . The conference should be held as soon as possible after a charge is filed, so that the events and actions which led to the charge will be fresh in the minds of the participants and evidence will be available to substantiate the statements made . The Fact Finding Conference serves a number of sub- sidiary purposes . It provides a forum during which both parties can focus on the issue at hand. They can then assess their own positions with respect to each other and the Commission . This situation enhances the possibility for an early settlement, especially since the damages have not yet been compounded by delay. The Fact Finding Conference should also be educational for both sides . The charging party may have a narrow view of the respondent' s policies , and the conference should foster an understanding of the respondent' s overall structure and reasons for certain actions . For the respondent, the conference may teach how individual employees are affected by policies or treated by supervisors . No matter what the outcome of the conference or the investigation itself , the parties should know more about each other when it is over . Although the Page 53 of 82 Pages Agenda Item No . 10, c, 2 Commission procedures are not available solely for educational purposes , better understanding is a worthwhile result in that such education may prevent similar complaints . Finally, for the Commission, the Fact Finding Conference has the purpose of establishing an investigative record early in the process , thus allowing a full investigation to focus on the relevant issues . If no settlement is reached, the Adminis- trator should be able to recommend dismissing or extending the investigation based on the statements and documents received at the conference . It should be noted that the Fact Finding Conference is a process prescribed by the EEOC and the conference is held only for Title VII charges . All other charges proceed directly to extend investigation if no settlement is achieved. Never- theless , it is highly important that the Administrator be capable of executing a Fact Finding Conference effectively, since the great majority of charges filed with the Commission involves Title VII complaints . II . Preparing for the Conference The Administrator must perform a considerable amount of work prior to the Fact Finding Conference . The effectiveness of the conference may very well depend on the adequacy of such preparatory work. The Administrator must review the charge, request any additional information , advise the charging party and respondent, select the participants and designate an appropriate time for the conference . Page 54 of 82 Pages Agenda Item No. 10, c 3 A. Review the Charge The Administrator must be thoroughly familiar with the charge before the conference . B . Acquiring Information Prior to the Fact Finding Conference, the Admin- istrator must review the questionnaire, determine if any additional information is needed, and should acquire such additional information . C. Advising the Charging Party The Administrator should maintain notes of prior discussions with the charging party . The Administrator should review these notes prior to the Fact Finding Conference . Generally, the Administrator should schedule the charging party to arrive one-half hour before the Fact Finding Conference . This preliminary meeting with the charging party will help the Administrator establish the charging party ' s position as to settlement, and will allow the Administrator another opportunity to assuage any apprehension the charging party may feel about the conference . D. Advising the Respondent As a general rule , the Administrator will begin the conference without any prior direct contact with the respondent and without any evidence or information regarding the respondent' s interest in achieving a settlement;- in some cases., however, pre-conference contact with the respondent may be appropriate . Page 55 of 82 Pages Agenda Item No. ID, C. 4 F . Selecting the Participants--General Considerations 1 . Attendance should be controlled in order to achieve a maximally effective Fact Finding Conference . (The reason for limiting attendance at the conference is to provide the best possible atmosphere for a candid and confidential exploration of the situation . ) 2 . The more people involved, the more difficult it will be for the parties to be frank . Furthermore, it is more likely that private information may be revealed to uninvolved parties . 3 . Too many people in attendance may result in inhibitions and embarrassment and defeat the goals of achieving candor and confidence . F . Selecting the Participants--Charging Party 1 . The Administrator should have already informed the charging party that he may have an attorney attend the con- ference in order to provide advice to the charging party . 2 . The charging party should also be informed that he may have a friend or relative attend in order to provide moral support. 3 . The Administrator must inform the charging party that no one will be allowed to speak on his behalf. G. Selecting the Participants--Respondent 1 . The Administrator should limit the participants for respondents to one who is directly involved with the charge, one with authority to speak about company policy and/or one who is empowered to negotiate a settlement. Page 56 of 82 Pa es 5 Agenda Item No . ICO- 2 . The person named on the charge , probably a supervisor, an interviewer, or someone in direct contact with the charging party , should obviously attend . 3 . If the name on the charge was acting upon someone else ' s orders , that person should also attend. 4 . If the action was taken pursuant to a policy, someone who can give information on the policy itself and its application, should be present. 5 . The respondent' s representation should be confined to these employees . If the respondent wants to bring others , the Administrator should decline permission unless that person can offer some relevant information not otherwise available . The notice of Fact Finding Conference states that the respondent is not permitted to bring persons other than those whose presence is specifically requested, or to send substitutes without the permission of the Administrator . Although the Administrator will want to have everyone present who can shed light upon the situa- tion, he must take care to avoid intimidating the charging party by allowing a "mongolian horde" of company representatives to attend. 6 . If the Administrator is unable to make a final decision about the utility of additional people, the Admini- strator should inform respondents that the additional people may come, but that they may be asked to sit outside until they are needed (if at all) . This action should discourage a respon- Page 57 of 82 Pages 6 Agenda Item No. i0. 1, dent from attempting to intimidate through sheer numbers . H . Setting the Time/Place 1 . The Fact Finding Conference should be scheduled for a date within three weeks after the filing of the charge . 2 . In choosing the exact date and hour, the Administrator should consult the intake notes to see whether the charging party has indicated any unavailable time . 3 . In general, a conference should not require more than two or two and one-half hours . The Administrator should allow sometime afterwards so that if a settlement is in prospect, everyone can keep working until it is completed . Fact Finding Conferences should therefore be scheduled in the morning or early in the afternoon . 4 . The Administrator should schedule no more than one Fact Finding Conference per day . 5 . An alternate date should be chosen in case a postponement is required. 6 . The conference must be held at a neutral site , preferrably the Council Conference Room. Under no circumstances will a Fact Finding Conference be held in respondent' s offices , or in the home of the charging party . III . Postponement for the Respondent 1 . In the event the respondent requests a postponement, the Administrator must use his discretion in determining to Page 58 of 82 Pages Agenda Item No. io, C,7 grant the request . As a general rule , the Administrator should be flexible about a first request, particularly since the respondent may have to bring a number of people together and assemble written materials . 2 . In the event a request for postponement is based upon someone ' s unavailability on a given date , the Administrator must establish that the individual' s presence is really required . 3 . If it is , the Administrator should offer reluctant agreement and settle upon another date immediately . The Admini- strator must not leave it open . If the employer has to check with a number of people, then two or three specific alternate dates should be set and the respondent should be requested to confirm one of them before the end of the day. 4 . Of course, a change of dates cannot be final without checking with the charging party and the Conference Room schedule . Confirmation of a new date may require some shuffling back and forth until a mutually agreeable time is established. 5 . Inordinately lengthy postponements should be granted only for compelling reasons . 6 . This may be the Administrator 's first contact with the respondent, and perhaps the question of settlement should be raised . J. Postponement for the Charging Party 1 . A charging party might also ask for a delay, and the request should be evaluated on the same basis as a respondent' s request. 8 Page 59 of 82 Pages Agenda Item No. (a, 2 . A charging party should not have as many logistical problems as a respondent may have . Hence , if a charging party requests a very long delay or more than one postponement, the individual ' s genuine desire to proceed with the investigation should be Questioned . 3 . If the problem is caused by the charging party' s reluctance to confront the respondent, in that event the Administrator should sympathetically try to resolve any fears . 4 . The charging party must, nonetheless , cooperYte with the Commission. Once a new date is set, the Administrator should mail a confirming notice immediately . III . The Administrator ' s Responsibility A. The Administrator must understand the nature of the Fact Finding Conference 1 . The conference may be thought of as a condensed version of an extended investigation and the Administrator ' s demeanor should reflect that. 2 . The conference is not an adversary proceeding . It is not a formal hearing . The Administrator should take this concept seriously into consideration and should stress this to both the charging party and the respondent. B . The Administrator must be impartial 1 . At the Fact Finding Conference , the Administrator is a fact-finder, he is not a judge to make a decision as to , . opposing positions . No cross examination will occur. 2 . The Administrator is there to collect data , and the participants are there to answer questions , not to Page 60 of 82 Pages 9 Agenda Item No. (O. c. fight or make procedural maneuvers . C . The Administrator Must Maintain Control 1 . All participants , including the Administrator , must understand the nature of the conference in order to establish control . 2 . The Administrator must take the initiative at the beginning and provide direction. In order to provide direction, he should identify the significant issues early in the conference and pursue the facts relevant to those issues . 3 . Since the Fact Finding Conference takes place under very complex circumstances ,. the Administrator must keep a clear mind at all times to maintain control . The dynamics of the conference are unpredictable and the Administrator must be ready to handle extreme situations . 4 . Maintaining a clear mind will also help the Administrator pursue the relevant facts and reject unnecessary information. D . The Administrator must be sensitive to the particular circumstances 1 . The Administrator should establish an atmosphere in which both sides are heard and are satisfied with the process . Both sides should feel they were fairly treated. 2 . The Administrator should be aware of the balance or imbalance within the conference room. In most instances, the respondent will have more representatives present at the conference and might also have a lawyer . Normally, the charging Page hl of 82 Pa es Agenda Item No . 10 I party appears alone . The Administrator must restrain the respondents if they threaten to be overbearing . 3 . Even if the respondent makes no overt effort to dominate , the charging party may be submissive , intimidated or reluctant to speak up . If that occurs , the Administrator should make a special effort to elicit information from the charging party, allowing time for answers , but without appearing to favor the charging party . 4 . The Administrator should gauge the amount of stress in the conference . General factual discussions at the beginning might help everyone to relax and get used to the conference situation . 5 . Some stress may nevertheless develop as disputed and sensitive issues are probed . The Administrator should not steer away fromm difficu_t matters only because emotions are expressed . In fact, underlying attitudes or previously withheld information comes out under stress . 6 . The Administrator, however, must never become emotionally involved . IV. Beginning the Conference A. Logistics 1 . Conferences should begin on time . If there is going to be any delay, it should not be caused by the Administrator . 2 . If a participant is late , the Administrator should invite the rest of the participants into the Conference. Page 62 of 82 Pages Agenda Item No . 10, .x. 11 Room and wait no more than twenty or thirty minutes . If the latecomer has not arrived by then, the Administrator should begin the conference anyway, and obtain information from the partici- pants who are present . 3 . The Administrator should arrange for respondents to sit on one side of the table , and the charging party on the other . Although this arrangement creates a seemingly adversary appearance , it accurately reflects how the parties feel about each other at the moment. The parties would feel awkward sitting next to each other . Furthermore, looking directly at each other is useful as opposed to having to turn sideways . 4 . The Administrator should, if possible , arrange for name plates to be provided for the participants . 5 . The Administrator should sit at the head of the table and be in possession of all the necessary information and documents . B . Introductions 1 . When everyone is seated, the Administrator should introduce himself, giving full name and title . 2 . The Administrator then must circulate the attendance form and request that everyone present print their name , title, phone number, who they represent, and sign the form in the appropriate place . 3 . When the completed attendance form is returned, the Administrator should introduce each participant, using that form as a guide . Page 63 of 82 Pages 12 Agenda Item No. fp, -C. C . Opening Statements 1 . After introducing the participants , the Administrator should read the opening statement . 2 . The statement must be read carefully, without racing or making it sound like a boring recital . Although the Administrator may have read the statement numerous times and perhaps even memorized it, he must remember that the participants have probably never heard it, and that it contains important information . 3 . If either party is accompanied by an attorney, the Administrator should read portions of the opening statement that address the attorney' s role . 4 . The first few minutes of the conference may be crucial in setting the tone and establishing control of the conference . D. Submitting Data 1 . The next step is to collect and log in the materials which were not submitted in response to the data request. Each document should be marked with the date of submission and should indicate whether it was submitted by the charging party or the respondent. 2 . Explanations of the material, if required, should be requested as the material is submitted and such explanations should be noted . 3 . After receiving the requested material, the . Administrator should carefully explain the legal status of the documents . Page 64 of 82 Pages Agenda Item No. l 13 a . Neither party has a right of access to the materials of the opposing party during Commission proceedings . b . The charging party or his attorney may reauest to see the file after the conclusion of the Commission proceeding if litigation is being contemplated, and the Administrator ' s notes will be available only if a suit is instituted, not before . c . The participants should understand that the notes are not a stenographic record, but rather a full and informed set of investigative records used by the Administrator to make his determinations . E . Reading the Charge 1 . Once the preliminary matters have been taken care of , the Administrator must move into the reading of the charge . 2 . The charge should be read in its entirety, including the charge number . 3 . When the Administrator gets to the allegations themselves, he should pause after each sentence or phrase, ask the charging party to affirm that this is his or her charge, and ask the respondent to answer briefly to each point. 4 . The charging party may wish to amend the charge, having learned information since filing or having reconsidered certain statements . 5 . The Administrator must either amend the original form if the change is minor, or draft an entirely new charge on the appropriate form, and secure the proper signature immediately. 6 . Copies of the amended charge must be given to the respondent. Page 65 of 82 Pages Agenda Item No. ID, c. 14 V. Discussion of the Facts A. Establishing the Context of the Dispute 1 . In order to gain a full understanding of the charge , the events must be understood within their context. That is , the Administrator must establish a sense of the workplace , including the kind of company involved and the types of positions and hierarchies existing in that company . 2 . Establishing this context will help the Administrator understand what comes later and separate the undisputed events . 3 . During this stage of the Fact Finding Conference , a friendly, non-adversary tone is established where the partici- pant will feel that the administrator intends to look into all aspects of the charge , even those aspects which do not touch directly upon the charging party, but which may still be relevant. 4 . The Administrator should first focus on the respondent. a . He should ask for a description of the company; what it makes or sells or what services it provides , how many people it employs , and what kinds of jobs there are . b . Then the charging party ' s department should be described, including its relationship with other departments, and its organizational structure . c . Job titles and functions, including supervisory relationships, should be described in great detail . Page 66 of 82 Pages Agenda Item No. (0,C 15 d . The Administrator should find out where the various respondent representatives present fit into this larger structure and what their relationship with the charging party is . 5 . Once the Administrator has established a general sense of the context within which the disputed action took place , he should focus on the charging party . a . The Administrator should ask for a description of the charging party ' s specific job functions , supervisory relationships and employment history . b . Then the charging party should be asked about the actual event which the charging party characterizes as discriminatory . c . The respondent must not be permitted to interrupt at this moment. This is the likeliest moment for the first interruption and, if one occurs, the Administrator should explain that each side will have full opportunity to give their interpretations in detail . It is especially impor- tant for the Administrator to be firm at this stage, since any sign of indecision may encourage further interruptions . d . Sometimes , the details of the description may have to be derived through extensive questioning . The Administrator must insure that all the specifics about the charge , what was said, by whom, where and why and whether anyone else was present, are available . Page 67 of 82" Pages Agenda Item No. 10. 16 B . Respondent' s Position 1 . If the fact finder feels satisfied with the charging party ' s description , he should turn to the respondents and ask for their explanation of the events so far described . 2 . If a specific interaction between, for example, a supervisor and the charging party is involved, the Administrator shall allow that supervisor to describe his recollection of the incident. It is important to derive this initial defense directly from the persons involved, because such defense may establish the respondent' s position throughout the proceedings . C . Developing the Facts 1 . After the first exchange , the major points of dispute should have emerged, and the line of inquiry should be- come obvious . 2 . The Administrator should now begin probing for differences in treatment . 3 . The charging party may have already cited certain specific differences in treatment in the charge . When such examples are available, the Administrator may want to ask the respondent for an explanation of these examples . Of course , the respondent will have prepared a rationale for these differ- ences . Hence, the Administrator should be prepared to probe further by asking the respondent about comparable situations not previously cited . 4 . The Administrator must ask questions, which , , when answered, will provide a basis for evaluation the merits Page 68 of 82 Pages Agenda Item No. ID, c'', 17 r of the allegations of differences in treatment . VI . Concluding the Conference. A . Closing Remarks 1 . The Fact Finding Conference ends when the Administrator feels that enough has been learned about the situation as can be learned from the people present, and that the participants are satisfied with the process so far . 2 . The Administrator, however, should always ask whether they have anything else to say, or whether any questions remain unanswered . 3 . Discussion of substantive issues should not be reopened, nor should the Administrator permit speeches or self- serving summaries on either side . 4 . If further documentary evidence is to be supplied, the Administrator should clearly restate what it is, who will prepare it, who will forward it, and by what date . 5 . Finally, the Administrator should explain again the next steps in the process . a . That the results of the conference will be reviewed. b . That unless further data is expected, a decision will be made as to whether or not to dismiss the charge or conduct a full investigation. c . That the prospect of settlement remains open. Page 69 of 82 Pages Agenda Item No. (D ,c. 18 I. B. Conference Notes and Write Up 1. The Administrator should keep notes of all the essential facts which surface during the Fact Finding Conference. 2 . Afterthe conference , the Administrator should rewrite the notes, eliminating irrelevant material and highlighting the important aspects of the conference. Though not mandatory, follow-up notes can prove very useful in determining the outcome of the Fact Finding Conference, providing a reference for the Administrator in case further investigation is necessary and providing guidelines for EEOC investigators in cases which may require deferrals . 3 . The notes are not stenographic, but are informa- tional, repetitive statements and clearly irrelevant discussion may be eliminated. 4 . Material which is incidential, but not completely necessary, can be summarized and consolidated. 5. The formal aspects of the conference should always be recorded on the appropriate form. This includes: a. charge number; b. date; c. the name of the charging party and respondent; d. the reading of the charge and the response to each of the allegations . 6 . The Administrator should not the conclusion of the conference so that there is not dispute as to who was told what about the submission of further documents and the next stage in the process . Page 70 of 82 Pages Agenda Item No. 19 C . Determinations 1 . After reviewing the notes of the Fact Finding Conference, the Administrator may decide that enough information has been gathered to make either a cause or no-cause determina- tion. 2 . If the Administrator feels that more information is necessary to make such recommendations , he should investigate the charge further . 3 . Extended investigations and the consequences of a cause or no-cause determination are discussed in the following section. Page 71 of 82 Pages Agenda Item No. If. c. 20 SECTION 5 EXTENDED INVESTIGATION/CONCILIATION Page 72 of 82 Pages Agenda Item No . 10, C, T Extended Investigation/Conciliation I . Extended Investigation A. Definition/Purpose 1 . The extended investigation is that part of the compliance process , by which the merits of a charge of discrimi- nation are examined . It is the means by which a charge filed under the Municipal Ordinances is investigated, and it is an extension of the Fact Finding Conferences for charges filed under Title VII of the Civil Rights Act, as amended, where such conferences provide insufficient information. 2 . The primary purpose of an extended investigation is to verify allegations of discrimination and to resolve issues in dispute . Through this investigation, the Administrator will derive sufficient information to recommend a .cause or no-cause finding. 3 . The purposes of the Fact Finding Conference and the extended investigation are similar in that both are an information-seeking process , and both are means to establish a basis on which to issue an official determination . They are different, however, in two respects . a . The extended investigation requires no direct, face-to-face interaction between the charging party and respondent, whereas the Fact Finding Conference is based on such interaction . Page 73 of 82 Pages Agenda IEem No. 1, f,2 b . Most of the information in the extended investigation is derived from witness statements , field investi- gations, documentation and other indirect sources , whereas the information in the Fact Finding Conference may be derived directly from the charging party and respondent, as well as written documents . 4 . The extended investigation, therefore, requires different techniques for its execution . B . Scope 1 . The scope of the extended investigation depends , of course, on the charge itself . Investigations range from a few telephone calls to extensive interrogatories of witnesses , several visits to respondent' s place of business , and considerable amounts of documentation. 2 . The Administrator is responsible for determining the extent of this stage of the compliance procedure and for planning the investigation accordingly . 3 . It is expected that the investigation will be completed in a relatively short time , but never at the expense of thoroughness and clarity . II . Planning the Investigation A. Review of Existing Material 1 . For Title VII charges which have undergone a Fact Finding Conference, the review will consist mainly of an analysis of the conference notes . Although the Administrator Page 74 of 82 Pages Agenda Item No. 3 iL has already planned much of the investigation before the Fact Finding Conferenece , he may decide that further issues have emerged during the conference which will require further investigation . Also , certain questions may not have been resolved during the conference and will need to be provided for in the planning of an extended investigation . 2 . For charges which are filed under the Municipal Ordinances only, the material for review will consist mainly of the notes from the initial interview and the answers to the questions provided by respondent . B . Jurisdictional Basis 1 . Two primary elements define the scope of any jurisdictional question . a . The substance of the charge . b . Jurisdictional facts . 2 . The facts must be analyzed in light of the statutory provision to determine whether they are complete enough to resolve the question of jurisdiction. If the question cannot be resolved, the Administrator must note specifically what information is needed to establish jurisdiction and how to secure that information. C . Basis of Discrimination 1 . The plan should contain a brief but complete statement of each discrimination case (e .g. race, sex, . . .) alleged by the charging party in the charge and at the interview. 2 . If it appears that a relevant basis exists that has not been alleged, this should be noted and the possi- Page 75 of 82 Pages Agenda Item No. 10. C. 4 bility of amending the charge should be discussed with the charging party . D . Issues 1 . In most cases , the issues will be clearly defined at intake (e .g . , denial of promotion, failure to hire, . . . ) , but in other cases , the issues may require clarification . 2 . It may be necessary for the Administrator to re-define the issues if he acquires additional information which warrants a re-definition . E . Theory 1 . The Administrator must decide upon what theory of discrimination he will base the investigation (i .e . , disparate treatment, disproportionate impact) . 2 . It should then be decided what kinds of evidence will be needed to prove the allegation. Although the charging party may have already provided some evidence during intake and at the Fact Finding Conference, the Administrator may need to corroborate or amplify this evidence because it is insufficient in itself . III . Obtaining and Analyzing Evidence A. Kinds of Evidence 1 . Evidence necessary to resolve the disputes is obtained primarily from documents and testimony . a . Documents consist of written records , such as work history, records , seniority lists, housing lists , etc . Page 76 of 82. Page Agenda Item No. ) , y, 5 IL b . Testimony is obtained from the respondent, charging party, and witnesses through interviews , phone contacts , and when applicable , the Fact Finding Conference . 2 . In addition to documents and testimony, the Administrator may need to conduct a field investigation to clarify or substantiate disputed information . For example , if the charging party alleges that only five Blacks are employed in respondent' s firm, and respondent alleges that more Blacks are employed, the Administrator may have to personally visit the firm to decide who is telling the truth . B . Analyzing Documents 1 . Documents should be checked to insure that they relate to the appropriate time period . 2 . The Administrator should also check for completeness and accuracy, by comparison with other documents and testimony. C. Analyzing Testimony 1 . Factual Conflicts are best resolved through documentation. Documents are not always available on the disputed matter, however, and testimony must be used to resolve the matter . 2 . The Administrator is responsible for deciding how much weight to be given to a party ' s assertion. 3 . Where a conflict cannot be resolved and the. credibility of a witness is therefore at issue, the Administrator should evaluate the testimony in light of the following criteria : 1 Page 77 of 82 Pages 6 Agenda Item No. jt; r a . Demeanor while testifying . b . Nature of the testimony . c . Capacity to perceive and communicate . d . Opportunity to perceive . e . Existence of bias , interest or other motives . f . Consistency of statement with other statements made . g. Extensive verification of matters asserted . IV. Cause/No-Cause Determination A. Pre-Determination Interview 1 . Once the Administrator has received enough information to make a cause or no-cause determination, interviews with the charging party and the respondent will be scheduled separately . 2 . A pre-determination interview allows the parties a final opportunity to add information to the investigation. 3 . The Administrator will contact each party, inform them of his tentative determination, and ask whether there is any further data or comments which the party wants to add. Such additional statements must relate to the disputed issues or must provide new information of which the party was unaware during the investigation process . 4 . The pre-determination interview is recorded on the appropriateriate form. 5 . Once the Administrator receives the additional information, consolidated with ,the existing information Page 78 of 82 Pages Agenda Item No. ap,r. 7 and reviews the investigation record, he will prepare a memorandum form, including a summary of the findings and recommendations . 6 . The Administrator will then issue either a cause or no-cause determination . B. No-Cause Determination 1 . A no-cause determination means that the Administrator has determined after investigation that there is not reasonable cause to believe that a charge is true . 2 . The Administrator must promptly notify the charging party and the respondent of this determination. If the charge is dual filed with the EEOC, the Administrator must notify that agency of this determination . Such notification is transmitted by preparing the appropriate memorandum. 3 . The no-cause determination, whether filed under the employment, public accommodation, or housing ordinance , must be transmitted to the appropriate committee of the Commission. C . Cause Determiation 1 . A cause determination means that the Administrator has found reasonable cause to believe that the allegations of discrimination are true . 2 . The Administrator must promptly notify the charging party and respondent that such determination has been issued. Page 79 of 82 Pages 8 Agenda Item No. K3J, 3 . If a cause determination is issued for a charge which has been dual filed with EEOC , the Administrator must notify that agency by memorandum. 4 . A charge will go into the conciliation stage after a cause determination is made . V. Conciliation A. Definition/Purpose 1 . Conciliation is that stage in the compliance procedure where a cause determination has been issued, and the Administrator determines the kind of remedy necessary to eliminate the practice of discrimination . 2 . The purpose of a conciliation is to make the charging party whole (i .e . to reimburse the charging party for any monetary loss incurred as a result of the discrimination act. ) 3 . A conciliation is not a negotiated agreement. The Administrator determines the terms of conciliation without consulting the respondent. B . Process The Administrator will determine the terms of the conciliation with input from members of the appropriate committee of the Commission . After the terms of the proposed conciliation agreement (based on what is required to make the charging party whole") have been mailed to the respondent, he will be given thirty days to comply with the agreement . C . Successful Conciliation 1 . If an agreement is reached, the charging party, the respondent, and the Administrator must sign the agreement. Page 80 of 82 Pages Agenda Item No . tp.c- 9 The original is retained in the file and copies are given to the charging party and respondent. 2 . The terms of the agreement of a conciliation agreement remain confidential . 3 . If the charge is dual filed with the EEOC, a copy of the entire file is sent to EEOC . 4 . As part of the final conciliation agreement, the Commission may be responsible for periodic compliance verification to insure that the terms and conditions specified in the agreement are being met. 5 . Once a case reaches a successful conciliation, the Commission compliance proceedings are ended with the exception of periodic verifications . P. Unsuccessful Conciliations 1 . In cases where the Administrator has issued a cause determination and been unable to reach a conciliation, the Administrator shall direct the case to the appropriate committees of the Commission . 2 . The committee may direct the Administrator to prosecute the case in Municipal Court . 3 . The committee may direct the Administrator to defer the charge to an appropriate state or federal agency . Page 81 of 82 Pages Agenda Item No . 10,c, 10