By: Mark A. Hutchison (Partner) and Piers R. Tueller (Senior Associate)
When an employer receives notice from the Nevada Equal Rights Commission (NERC) or the Equal Employment Opportunity Commission (EEOC) that a current or former employee has filed a “Charge of Discrimination,” it can be frustrating and confusing. NERC and the EEOC are the state and federal entities charged with enforcing anti-discrimination laws. Employment discrimination is a broad term that can arise in numerous circumstances due to employees’ membership in legally protected categories such as race, sex, age, or religion. In bringing a charge against their employer, employees have the ability to “dual file” with NERC and the EEOC. However, an employer will likely only need to respond to the agency who has processed the charge. Regardless of who is investigating the claim, employers must not ignore the charge of discrimination. Ultimately, the NERC process is straightforward.
Notice of Charge of Discrimination to Employer – The notice of a pending charge will provide the basic allegations against the employer. In response, the employer is able to: (1) provide a written settlement, (2) participate in an informal settlement conference and submit a position statement, or (3) waive the informal settlement conference and submit a position statement.
Informal Settlement Conference – For cases assigned to the NERC mediation program, the parties will be invited to participate in an informal settlement conference. This conference is generally held by telephone. Participation is voluntary and the conference is confidential. A NERC mediator not associated with the investigation will conduct the conference.
NERC Investigation – Should the matter be remanded to investigation, the assigned investigator may take the following actions to determine the validity of the charge:(1) request a response from the employer to the charge and request information related to the allegations; (2) contact the complainant for further information relevant to the charge; (3) review third parties information, including physicians or other agencies; (4) interview witnesses; and/or (5) visit the site of the alleged discrimination. An employer’s position statement is of paramount importance as it acts as a road map for the investigator and should assist in both the investigatory process and in subsequent litigation.
Determination of Cause/No Cause – After the investigator has collected all of the facts necessary to resolve the charge, the parties will be informed, on the basis of the evidence examined, that there is or is not probable cause to believe that discrimination occurred.
After the investigation, if NERC determines that an unlawful practice has occurred, attempts to mediate between the parties by means of conciliation can again be made. If those attempts fail, NERC may proceed by holding a public hearing, seeking redress from the district court, or referring the matter to an appropriate federal agency. The complainant may also proceed with litigation without the involvement of NERC. However, if NERC holds a public hearing on the charge, the complainant may not proceed in any other forum.
Moreover, it is important to note that in the event NERC/EEOC makes a determination of no probable cause, the complainant still has the right to proceed with the procedures outlined in NRS 613.420 or can request a “Right to Sue Letter” from the EEOC. An employee is able to file an action in either state or federal court (if the charge has been dual filed with the EEOC). Nevada statutes dictate filing timelines and should be monitored closely.
Ultimately, NERC charges are serious. Upon receipt of a notice, an employer should immediately collect and preserve all relevant documents and information concerning the charge. Furthermore, if the employer has not already done so, it should identify relevant witnesses, investigate the circumstances surrounding the charge, and otherwise begin to collect information that can assist in defending against the allegations asserted by the employee. Importantly, an employer should seek competent legal counsel to advise and defend against these types of reputation-damaging claims and ensure the strict legal requirements governing them are satisfied.
This article originally ran in the October 2025 issue of Nevada Business Magazine.
