My Business Was Just Served With an Employment Discrimination Complaint — First Steps for NY and NJ Employers
Receiving an employment discrimination complaint is alarming. Whether it arrives as a charge filed with the Equal Employment Opportunity Commission, a complaint with the New York State Division of Human Rights, a complaint with the New Jersey Division on Civil Rights, or a lawsuit served by a process server, the instinct of most Korean business owners is to either panic or dismiss it. Both reactions are wrong. A discrimination complaint is a legal proceeding with strict deadlines, specific obligations, and consequences for inaction that can be as damaging as the underlying claim itself. The first seventy-two hours after receipt of a complaint are the most important, and the decisions made during that window set the trajectory for everything that follows.
This guide explains what to do — and what not to do — immediately after your business receives an employment discrimination complaint in New York or New Jersey.
Step One: Identify What You Have Been Served With
Not all employment discrimination complaints are the same, and the procedural requirements and deadlines differ significantly depending on the type of document you received. Before doing anything else, determine what you are dealing with.
An EEOC charge of discrimination is an administrative filing with the federal Equal Employment Opportunity Commission, typically on EEOC Form 5. It is not a lawsuit. The EEOC will investigate the charge and may attempt to mediate a resolution before deciding whether to issue a Right to Sue letter. The employer receives a notice of charge and has the opportunity to submit a position statement — typically within thirty days of the EEOC's request, though that deadline can sometimes be extended. Receipt of an EEOC charge is the beginning of an administrative process, not a court proceeding, but it is the gateway to federal litigation if it is not resolved administratively.
A complaint with the New York State Division of Human Rights (DHR) or the New York City Commission on Human Rights (CCHR) is a state or city administrative filing alleging violations of the New York State Human Rights Law or the New York City Human Rights Law. These agencies investigate complaints and may schedule an investigatory conference or request written responses from the employer. New York DHR complaints must be filed within one year of the alleged discriminatory act, and the agency has significant investigatory and adjudicatory authority. A complaint with the New Jersey Division on Civil Rights (DCR) operates similarly under the New Jersey Law Against Discrimination.
A lawsuit — a summons and complaint filed in state or federal court — is a judicial proceeding with strict answer deadlines. In New York Supreme Court, the defendant generally has twenty days to answer if served personally and thirty days if served by other means. In New Jersey Superior Court, the answer period is thirty-five days. In federal court — whether SDNY, EDNY, or the District of New Jersey — the answer period is twenty-one days from service. A default judgment can be entered against an employer who fails to answer within the applicable period. If you have been served with a summons and complaint, the answer deadline is the most urgent priority.
Some complaints arrive in multiple forms simultaneously — an EEOC charge cross-filed with the DHR or DCR, or a lawsuit filed after an administrative charge has run its course. Read everything you received carefully and identify every document, every agency named, and every deadline referenced before taking any other action.
Step Two: Do Not Contact the Complainant
This step requires no legal analysis. Do not call, text, email, or otherwise contact the employee who filed the complaint — not to explain yourself, not to apologize, not to offer a resolution, and not to ask what it would take to make this go away. Any communication you make with the complainant after a charge or lawsuit has been filed can be characterized as an attempt to influence a witness, obstruct an investigation, or retaliate against a protected activity. All three create additional legal liability on top of whatever the original complaint alleges.
Direct your managers and supervisors not to contact the complainant either. In a small Korean-owned business where the complainant may still be working for you, or where the owner and former employee share community or church connections, the temptation to reach out informally is real. Resist it. Any communication that can be characterized as pressure, persuasion, or an attempt to settle the matter outside the formal proceeding will be used against you.
The same prohibition applies to the complainant's friends or family members who work for you, and to any co-workers who may have been witnesses to the events described in the complaint. Do not ask anyone to speak to the complainant on your behalf, do not suggest to witnesses how they should characterize events, and do not take any adverse action against anyone connected to the complaint. Retaliation against a complainant or witnesses is an independent violation of anti-discrimination law — it creates a new cause of action even if the original complaint is entirely without merit.
Step Three: Issue a Litigation Hold Immediately
As soon as a complaint is received — whether administrative or judicial — the duty to preserve relevant documents arises. This is called a litigation hold, and failing to implement one correctly can result in sanctions, adverse inference instructions to the jury, or in serious cases, dismissal of defenses. The duty to preserve is not triggered by the filing of a lawsuit — it is triggered by reasonable anticipation of litigation, which means it can arise even before a complaint is formally filed if you have reason to believe one is coming.
A litigation hold requires you to immediately suspend any routine document destruction or deletion practices and preserve all documents — physical and electronic — that are potentially relevant to the complaint. In an employment discrimination case, relevant documents typically include: the complainant's personnel file; timekeeping and payroll records; performance evaluations and disciplinary records; correspondence between the complainant and management; text messages, emails, and messaging app communications involving the complainant or the events described in the complaint; records of any complaints the complainant made and how they were handled; records of other employees' disciplinary actions if they are relevant to a disparate treatment claim; and any documentation relating to the employment decision at issue.
In Korean-owned businesses, relevant communications frequently occur through KakaoTalk, WhatsApp, or other messaging platforms in addition to or instead of email. These communications are subject to the same preservation obligation as email and must be preserved. A manager who deletes KakaoTalk messages with the complainant after the complaint is received has destroyed evidence, and that destruction can be used against the employer in subsequent proceedings regardless of what the messages contained.
Notify every person in your organization who may have relevant documents — managers, supervisors, HR personnel, and any employees identified in the complaint — that they must preserve all potentially relevant materials. This notification should be in writing. Document that you issued the hold and to whom.
Step Four: Notify Your Insurance Carrier
If your business has employment practices liability insurance (EPLI), notify your carrier immediately. Most EPLI policies require prompt notice of a claim as a condition of coverage, and delayed notice can jeopardize your right to defense and indemnification under the policy. Do not wait until you have spoken with an attorney, do not wait until you have assessed the merits of the claim, and do not wait because you believe the claim will go away on its own. Provide notice now and let the carrier evaluate coverage.
When you notify the carrier, provide them with copies of all documents you received — the charge, the complaint, the summons, or whatever was served — and ask them to confirm whether the claim is covered, whether defense counsel will be appointed, and whether any reservation of rights applies. A reservation of rights means the carrier is providing a defense while reserving the right to deny coverage later — which means you may be responsible for defense costs or any judgment even if the carrier is initially defending the claim. If the carrier issues a reservation of rights letter, have it reviewed by independent counsel who represents your interests, not the carrier's.
If you do not have EPLI coverage, or if the carrier denies coverage, you will need to retain employment defense counsel at your own expense. Given the mandatory attorneys' fee provisions of both New York and New Jersey anti-discrimination statutes — which require a prevailing plaintiff to be awarded attorneys' fees — the cost of defense in a contested discrimination case is almost always less than the cost of losing one.
Step Five: Engage Employment Defense Counsel
Whether or not your EPLI carrier is appointing defense counsel, you need an employment attorney advising you from the first day. The procedural landscape of an employment discrimination proceeding — agency investigation, position statement preparation, mediation, discovery, dispositive motions, and trial — is complex, and every stage presents opportunities to improve or harm your position. An employer who navigates this process without legal advice consistently makes avoidable mistakes that compound the original problem.
The specific tasks that counsel should begin immediately include: reviewing all documents received, identifying all deadlines, and calendaring them; reviewing your litigation hold to confirm it is adequate; assessing the merits of the underlying claim by reviewing the complainant's employment history, the circumstances of the alleged discriminatory act, and all relevant documentation; identifying any potential defenses including timeliness, failure to exhaust administrative remedies, and substantive defenses to the discrimination claim; advising you on whether to engage in early mediation or settlement discussions; and if a lawsuit has been filed, preparing or reviewing the answer before the deadline.
Korean business owners should seek counsel who is familiar with both the substantive law and the practical realities of Korean business operations — including the employment practices that are common in Korean-owned businesses and that frequently give rise to claims. Cultural context matters in how a claim is investigated and how a defense is constructed, and an attorney who understands that context is better positioned to advise you effectively.
Step Six: Gather and Organize the Relevant Facts — Carefully
Once counsel is engaged, work with your attorney to reconstruct the factual record — what happened, in what sequence, who was involved, and what documentation exists for each relevant event. Do this carefully and under the protection of attorney-client privilege, meaning you should communicate your recollection of events to your attorney in private and not share it with employees, family members, or anyone who is not part of your legal team.
Collect all documents relating to the complainant's employment: the original job application or offer letter; any employment contract or offer of employment; I-9 and tax forms; time and payroll records; performance evaluations; disciplinary records; any internal complaints or grievances the employee filed; records of training the employee received; correspondence in any medium — email, text, KakaoTalk — between the employee and management; and any documentation of the specific employment decision at issue, whether termination, demotion, denial of promotion, or other adverse action.
One critical caution: do not reconstruct, alter, or create documentation that did not exist at the time of the events in question. Do not write a memorandum today explaining why the complainant was terminated and backdate it. Do not add notes to a personnel file to fill in gaps that you now recognize. Do not create a paper trail that was not contemporaneous. Courts and agencies are experienced at identifying documentation that was created after the fact in anticipation of litigation, and the discovery of such conduct can be more damaging to your defense than the absence of the document would have been.
Step Seven: Assess the Claim Honestly and Evaluate Settlement Early
Once counsel has reviewed the complaint and the underlying facts, ask for an honest assessment of the claim's merits. Not every discrimination complaint has merit, but not every complaint that lacks merit is worth fighting to a verdict. The calculus in an employment discrimination case involves the probability of success, the cost of defense through the various stages of litigation, the disruption to business operations that discovery and trial will cause, the exposure created by mandatory attorneys' fees provisions, and the reputational consequences of a public trial.
Many discrimination cases settle — at the agency level, in mediation, or during the pre-trial litigation phase — for amounts that are substantially less than the cost of litigating to a verdict. Early settlement discussions, before the parties have invested heavily in litigation, typically produce better outcomes for employers than late settlements after full discovery. This is not a counsel of capitulation — it is a counsel of commercial rationality. A strong defense that proceeds to a favorable verdict is the best outcome; but a reasonable settlement that closes the case for significantly less than the cost of defense and the risk of an adverse verdict is often the second-best outcome, and it is frequently better than winning an expensive trial.
Settlement discussions at the agency level — through the EEOC's mediation program, or through DHR or DCR conciliation — are confidential and do not constitute admissions of liability. If the EEOC offers mediation, consider it seriously before declining. Many claims that are resolved in mediation would cost far more to litigate to a right-to-sue letter and subsequent federal lawsuit than the mediated settlement amount.
Frequently Asked Questions
The complaint is completely false. Do I still need a lawyer?
Yes — and the fact that the complaint is false makes competent legal representation more important, not less. A meritless complaint that is not defended correctly can result in a default judgment, an adverse agency finding, or a settlement under pressure that validates a claim that had no basis. Defending a false discrimination complaint requires navigating the same procedural requirements as defending a meritorious one, and the consequences of procedural error do not depend on whether the underlying claim is true. Engage counsel immediately regardless of your view of the complaint's merits.
I received an EEOC charge. Do I have to respond?
You are not legally required to submit a position statement to the EEOC, but failing to do so is almost always a mistake. The EEOC investigator will form their initial assessment of the charge based on whatever information is available, and if the employer provides no response, the investigator has only the complainant's version of events. A well-prepared position statement — factual, supported by documentation, and framed to highlight the legitimate non-discriminatory reasons for the employment decision at issue — is your opportunity to present your side of the story before the EEOC makes any determination. Have counsel prepare or review your position statement before submission.
The former employee is still connected to my Korean community. Can I ask mutual acquaintances to help resolve this informally?
No. Any attempt to resolve the complaint through informal community channels — asking a pastor, a mutual friend, or a community leader to speak with the complainant — can be characterized as an attempt to influence a witness or obstruct an administrative proceeding. It creates retaliation exposure even if the intent was purely conciliatory. All communications with the complainant, including any settlement discussions, must go through legal channels — either directly between counsel or through the agency's formal conciliation or mediation process.
I deleted some text messages with the former employee before I knew a complaint was coming. Is that a problem?
It depends on when you deleted them and what they contained. If you deleted messages before you had any reason to anticipate litigation — before the complaint was filed and before any communication suggesting a complaint was coming — routine deletion is generally not treated as spoliation. If you deleted messages after you received a complaint or after the employee communicated an intent to file one, that deletion may be treated as spoliation of evidence, which can result in adverse inference instructions, sanctions, or other consequences. Disclose the deletion to your attorney immediately and completely so they can assess the risk and address it before it becomes a larger problem.
Good Pine P.C. defends Korean-owned businesses in employment discrimination proceedings before the EEOC, the New York State Division of Human Rights, the New York City Commission on Human Rights, the New Jersey Division on Civil Rights, and in state and federal court. If your business has just received a discrimination complaint, contact us today. The decisions you make in the first week determine how the rest of the proceeding goes.
This article is provided by Good Pine P.C. for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney–client relationship. Laws and regulations may change, and their application depends on specific facts and circumstances. You should consult a qualified attorney before taking any legal action based on this information.
