Frequently Asked Questions
Once a complaint of discrimination has been filed with the Human Rights Bureau, and charging party has named an employer as a respondent, or a person responsible for certain alleged discriminatory acts, the law requires the Bureau to conduct an investigation of the complaint. We do not represent either party during the investigative process, nor do we presume that a complaint of discrimination has any merit.
This page may contain legal information. Legal information is not the same as legal advice – the application of law to an individual’s specific circumstances. We do our best to provide you with neutral information that is accurate and useful, but we recommend you consult a lawyer if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.
Q: I have just received a Charge of Discrimination, what do I do now?
A: The Bureau requests a response to the complaint in a written answer within ten (10) business days of your receipt of the notice. The purpose of this initial answer is simply to confirm that you have been notified of the complaint. For your information, the bureau staff is mandated by statute to complete an informal investigation of this case within 180 days.
Although you are only required to admit or deny the allegations, a more thorough explanation of your position may lessen the need for additional requests for information once this case is assigned to an investigator. It may also result in a more rapid resolution of the complaint. If you submit a detailed response at this time, please send the original and one copy of the response, to the Bureau.
Q: 10 business days is not enough time to compile my answer, what can I do?
A: If you need additional time to submit an initial response to a discrimination complaint, contact the Human Rights Bureau. The staff can work with you to determine a mutually agreeable amount of time to submit a response. Remember, the Bureau only has 180 days to complete the informal investigation, so time is limited. Ignoring a complaint will not make it go away.
Q: Do I need to hire an attorney?
A: Both parties have the right to be represented by counsel, but are not required to have an attorney during the informal investigation phase.
Q: The person filing the complaint was a probationary employee; I thought I could fire a person for any reason during their probationary period.
A: Human rights laws are not affected by a probationary period. In Montana anti-discrimination laws apply to all prospective, current, and past employees.
Q: My employee filed a discrimination charge against me. I think it is harassment. What action can I take against them?
A: Taking action against an employee simply because they filed a complaint (either with the Bureau, or internally) could lead to a retaliation complaint. See Montana Code Annotated 49-2-301
Q: Since filing his complaint, the charging party has not come to work and has taken a company vehicle to Las Vegas for the weekend. This is typically grounds for termination, but we don’t want it to be viewed as retaliation. What should we do?
A: Under the Administrative Rules of Montana there is a “presumption” of retaliation if an employer takes an adverse action for six months after a complaint is filed, but it is a disputable presumption.
Consequently, it is not retaliation if the employer can establish (by a preponderance of the evidence) that the reason for the termination is not related to the complaint.
Q: What is a “preponderance of the evidence”?
A: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact, but by evidence that has the most convincing force; superior evidentiary weight, that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Q: The investigator has asked for disciplinary records for all of the employees that work with the charging party, don’t I have an obligation to protect their privacy?
A: You can ask the investigator to hold identifying information as confidential. You can provide an investigator with both a clean copy and a redacted copy of the information requested. Then, if a party, or 3rd party, wants access to private information, there is a process to decide whether the right to know out weighs the right to privacy. See Administrative Rule 24.8.210.
Q: The complaint was filed 3 months ago and I haven’t heard from the investigator, what’s going on?
A: Investigators have 180 days to complete an investigation. When the investigation begins will depend upon a variety of factors, for example the investigator’s work-load and the complexity of the case. Also, it may be that the investigator is working on your case and does not yet need information from you.
Q: What is the Equal Employment Opportunity Commission's involvement in this process?
A: When a charging party files an employment discrimination complaint and the employer has sufficient employees to be covered by certain federal employment discrimination laws, a complaint may be “dually filed” with the EEOC. This means that a charging party has a complaint under both state and federal laws. However, not all types of discrimination are also covered under federal laws. For example, Montana’s discrimination laws protect persons based on marital status, but this is not a protected class under federal employment discrimination laws.
Q: What can I do to prevent claims of discrimination in the future?
A: Prevention is the best tool:
Diversifying Your Workforce--A Four-Step Reference Guide to Recruiting, Hiring, & Retaining Employees with Disabilities
Disability Accommodation & The Interactive Process
Job Accommodation Network
Federal Equal Employment Opportunity Commission
Responding To A Complaint
Human Rights Bureau Process
Employment Discrimination Laws
Training & Publications
Fast Track Mediation Option
Q: How long is a reasonable maternity leave? I understand it to be 6-8 weeks, is that true?
A: It depends. The term reasonable is not defined by the Montana Human Rights Act or Administrative Rules of Montana. Reasonable leave is determined by her medical provider.
Q: My Company is not large enough to be covered by the federal Family and Medical Leave Act, but I have a pregnant employee who is expecting to take maternity leave, can I terminate her employment?
A: In Montana, an employer’s female employees are covered by the Montana Human Rights Act regardless of whether the employee qualifies for federal Family and Medical Leave Act coverage. An employer cannot take adverse action against an employee simply because she is pregnant. Further, she is entitled to reasonable accommodations on-the-job, and a reasonable maternity leave.
Q: Must employers hold open the job of an employee who is absent on maternity leave?
A: An employee who has signified her intent to return at the end of a reasonable leave of absence for maternity must be reinstated to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits.
Q: When must I provide an employee a reasonable accommodation?
A: When an employer knows or should have known that an employee needs an accommodation to perform the essential functions of the job they must enter into an interactive process.
Q: Can an employer apply the same performance standards to a person with a disability?
A: An employer is required to “reasonably accommodate” an employee with a disability. It is not reasonable to lower or change performance standards, assuming the performance standards are measuring the essential functions of the job and not marginal functions.
Q: May an employer require that an employee who is having performance or conduct problems to provide medical information or undergo a medical examination?
A: Employers may still require all the medical substantiation they need to determine if the employee can perform the essential functions of the job with or without a reasonable accommodation.
Please note that in Montana, an employer cannot require an employee to pay for his or her medical examination, when required by the employer. See Montana Code Annotated 39-2-301
Q: If I provide an employee an accommodation aren’t I providing them special treatment?
A: It is an accommodation for a disability so they can perform the essential functions of the job.