By Milan Chatterjee | Founding Attorney, Milan Legal |
A NERC Charge of Discrimination Is the Start of an Investigation, Not a Lawsuit
Receiving a NERC charge of discrimination means a current or former employee has filed a formal complaint with the Nevada Equal Rights Commission, and that the Commission has accepted it for investigation. It is not a lawsuit, not a finding, and not a judgment. It is the opening of an administrative process in which the employer’s own response becomes the central piece of evidence, often for years afterward.
The first source of confusion is that most Nevada employers are notified that the charge has been filed with both NERC and the federal EEOC. That is not two complaints. Under a worksharing arrangement, a charge filed with one agency is generally dual-filed with the other, and one of them takes the investigation.
The second source of confusion is more expensive. Many employers treat the response as an administrative formality and send a short letter written by whoever is closest to the situation, frequently the manager the charge is about. That letter is the document a plaintiff’s lawyer will read aloud in a deposition two years later.
What to Do in the First 48 Hours
Stop routine destruction of records immediately. Federal regulation requires an employer against whom a charge has been filed to preserve all personnel records relevant to the charge until final disposition (29 C.F.R. 1602.14). That obligation attaches on notice of the charge, not on the response deadline. It reaches personnel files, emails, scheduling and timekeeping records, performance documentation, and text messages on company systems.
Do not touch the file. Adding a write-up, backdating a review or “completing” documentation after notice of a charge is the single most damaging thing an employer can do. It converts a defensible case into an indefensible one, and it is usually discoverable through metadata.
Identify the decision-makers, in writing. Who made the decision at issue, when, on what information, and who else was treated the same way or differently. This is the factual core of the response and it is far easier to reconstruct in week one than in month six.
Restrict who knows. The charge should go to counsel and to the people whose knowledge is genuinely necessary. Circulating it broadly creates witnesses and increases the chance of the next problem.
The Retaliation Trap
NRS 613.340 makes it an unlawful employment practice to discriminate against a person for opposing an unlawful practice or for assisting in an investigation. Retaliation claims are frequently easier to prove than the underlying discrimination claim, because the timeline does the work.
An employee who filed in March and was reassigned, scheduled differently, excluded from a meeting or terminated in April has a retaliation claim that may survive even where the original charge fails. Employers create this exposure through ordinary management decisions that would have been unremarkable a month earlier. Any adverse action affecting the complainant after notice of a charge should be reviewed before it happens, not explained afterward.
The Response Deserves More Care Than It Usually Gets
The position statement is the employer’s account of what happened, submitted under circumstances where the employer may not yet know everything the complainant has alleged in detail. Once submitted, it is difficult to walk back. Every subsequent version of the employer’s story gets measured against it, and inconsistency between the position statement and later testimony is more damaging than an unflattering fact disclosed at the outset.
The Three Response Paths at NERC
Nevada respondents are generally given a choice of routes, and the choice itself carries strategic weight.
Early offer of settlement. The respondent submits a written settlement offer by an assigned date without a full position statement addressing the charge. If early settlement fails, a position statement due date is set and the matter is remanded to enforcement. This path can resolve a weak or nuisance claim quickly, but making an offer before understanding the facts is a decision that should be made deliberately rather than defensively.
Informal settlement meeting. NERC’s mediation route. The Commission has express statutory authority to mediate and reconcile the parties. Mediation early, before positions are documented, sometimes resolves matters that would otherwise consume a year.
Position statement. The full written response to the allegations, due on the date the Commission assigns. This is the default path and the one that requires the most preparation.
What Makes a Position Statement Risky
Two features surprise employers.
First, the position statement is generally provided to the charging party on request, so it should be written on the assumption that the complainant and their counsel will read it. Confidential business information, medical records and personnel data belonging to other employees should be segregated into separately labeled attachments rather than embedded in the narrative.
Second, the response should be supported by documents rather than by characterization. A statement that an employee was terminated for performance is worth very little without the contemporaneous performance record. A statement supported by a documented, consistently applied policy is worth a great deal.
Investigate Before You Respond, Not After
The sequence that produces good outcomes is consistent: preserve, investigate internally, then respond. The sequence that produces bad outcomes is equally consistent: respond quickly from memory, then discover during the investigation that the response was wrong in a detail that now cannot be corrected without damaging credibility.
A short internal investigation before the deadline also frequently surfaces the real issue, which is often a supervisor practice or a policy applied inconsistently across a team rather than the specific incident described in the charge. That is a problem worth finding while it can still be fixed.
Milan Legal Perspective
Before founding Milan Legal, Milan Chatterjee served as Associate Compliance Counsel at Las Vegas Sands Corporation, a Fortune 500 hospitality company, where he advised senior leadership on internal investigations, governance and compliance across global operations. A UCLA School of Law graduate admitted in Nevada (Bar No. 15159) and California, he was appointed to the Nevada Supreme Court Access to Justice Commission and serves as Founding President of the South Asian Bar Association of Las Vegas.
Responding to a discrimination charge is an investigations problem before it is a legal argument. The question is rarely whether the employer had a defensible reason. It is whether the reason was documented at the time, applied to comparable employees consistently, and can be stated the same way by every person who touched the decision. Employers that lose these matters usually had a legitimate reason and no contemporaneous record of it.
Milan Legal advises Nevada employers on charge response, workplace investigations and HR compliance, and ongoing outside general counsel support across Las Vegas, Clark County, Reno and the Lake Tahoe region.
Frequently Asked Questions
No. A charge opens an administrative investigation. A civil action becomes possible only after the process runs its course and a right-to-sue notice issues under NRS 613.412 or NRS 613.420.
An employment charge must be filed with NERC within 300 days of the alleged discriminatory act. Charges are now filed through the Commission’s online portal.
Under NRS 613.310, the definition of employer generally reaches those with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and includes the State and its political subdivisions.
NRS 613.330 prohibits discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity or expression, age, disability and national origin. Race expressly includes traits associated with race such as hair texture and protective hairstyles. Nevada also protects discussion of wages and regulates the use of criminal history.
Assume yes. Position statements are generally provided to the charging party on request. Confidential business, medical and third-party personnel information should be placed in separately labeled attachments rather than in the body of the response.
Not without careful review. NRS 613.340 prohibits discrimination against a person for opposing an unlawful practice or assisting an investigation. Adverse action following a charge invites a retaliation claim that can outlive the original allegation, so any such decision should be reviewed before it is made.
Yes. Under NRS Chapter 233 the Commission may issue subpoenas for witnesses and for the production of documents or tangible evidence relevant to its investigations and hearings.
Conclusion
A discrimination charge is a documentation test conducted under a deadline. Nevada employers rarely lose these matters because they lacked a legitimate reason for a decision. They lose because the reason was never written down when it was made, because the same conduct was handled differently for a different employee, or because a hurried position statement said something the later evidence contradicted.
The controllable variables are all in the first two weeks: preserve the records, resist the urge to improve the file, find out what actually happened, and make sure nothing that happens to the complainant between now and the response creates a second claim.
Where to Start, Depending on Your Situation
If the charge arrived this week. Preservation and the retaliation review are the immediate priorities, ahead of drafting anything. A short call now is worth considerably more than a longer one after a response has been filed.
If you have already responded, or the deadline is close. The focus shifts to what the response committed the company to, whether the supporting documentation actually exists, and whether the underlying practice creates exposure beyond this one complainant.
