Month: February 2019

What is the EEOC?

The Equal Employment Opportunity Commission (EEOC) is the government agency that enforces several laws relating to discrimination including those that protect employees from discrimination based on their race, color, religion, sex, national origin, age (40 and older), disability, and genetic information. It also protects employees from retaliation because they filed an EEOC charge, complained of discrimination, or testified or participated in an investigation or lawsuit involving an employment discrimination charge. Under the Federal law employers with 15 or more employees must not discriminate against individuals based on any of the above characteristics. Many states have employee thresholds that are less than 15 employees.

If a company has an EEOC charge filed against them, then it needs to be prepared to respond. Obviously, the best practice is to avoid circumstances that could lead to a discrimination lawsuit.

Creating a Record

The first goal of any employer should be to avoid an EEOC charge. It is not possible to ensure that there is no risk of lawsuit when you fire or discipline an employee. Adverse employment decisions can be gray.

However, there are a number of things that can be done to reduce the risk of a lawsuit.  Here is an earlier post that discusses many of the items that should be considered. To summarize, any time you discipline an employee (and ultimately terminate them) you need to consider the following to reduce the chance of an employee filing a discrimination charge against a company:

1. Was the employee aware of the company policy that they violated?
2. How many times has the employee violated the policy and other policies?
3. Did the company apply the progressive discipline policy?
4. Has the company documented the violation and prior violations? Was the corrective action documented?
5. What level of discipline does the employer’s policy require?
6. What discipline did other employees that have violated the policy receive?
7. Is there any reason to reduce the punishment? Are there mitigating circumstances?

Whenever a company disciplines an employee it needs to create a record of the discipline. Every company should have a discipline form that tells employees what rule they violated and any corrective action that will be taken. Employers should have employees sign and date the form. If they refuse to sign, then the HR manager or a supervisor can write on the form that “the employee refuses to sign,” and date and sign next to this statement. In this way, every employer can control the record for any actions that it took in response to employee behavior.

Unfortunately, this step will only prevent or limit claims related to actions that the company formally took. It does nothing for discrimination claims that are based on the actions of a supervisor or boss that are acting unprofessionally by joining in or encouraging misbehavior or the result of the actions of fellow employees. These situations are especially common in cases of sexual harassment. You can review how to limit sexual harassment in one of my prior posts.

When You Receive the EEOC Charge

First you need to review the charge to determine what is alleged. You should review the information carefully to determine:

• What law was violated?
• Who is alleged to have been involved?
• When did the alleged action occur? (Note: some actions may be barred by the statute of limitations.)
• Are any documents mentioned?
• Who, if anyone, committed the alleged unlawful conduct?
• Does the company have any record of the unlawful conduct?
• If so, did the company take any action to resolve the conduct?

Preserve any necessary records that are related to the allegations. Companies should also quickly alert the team that will be responsible for responding to the allegations including outside counsel, inside counsel, HR, and/or management.

Start Your Investigation and Response

Investigations need to take place quickly so that you can respond to the EEOC in a timely manner. The EEOC will also start its investigation after it issues the charge. The EEOC will generally begin the investigation by requesting a number of documents from the company including the employee’s personnel file, any relevant rules, and the employee handbook. The EEOC will also want to speak with witnesses and possibly come onsite. All of these witnesses, management and non-management, should be prepared to speak with the EEOC. Attorneys for the company may need to meet with these individuals to ensure they are ready. The EEOC will also request that the employer provide a written statement with its position on the allegations.

The EEOC has done a great job outlining how to draft a statement of position:

• Address each alleged discriminatory act and your position regarding it and provide copies of documents supporting your position and/or version of events.
• Provide a description of the organization; include the organization’s legal name and address, the name, address, title, telephone number and email address of the person responsible for responding to the charge, the primary nature of the business, and the number of employees. A staffing or organizational chart is also useful in helping to focus the investigation.
• Provide any applicable practices, policies or procedures applicable to the allegations in the charge.
• Identify any individuals other than the Charging Party who have been similarly affected by these practices, policies or procedures; describe the circumstances in which the practices, policies, or procedures have been applied.
• Explain why individuals who were in a similar situation to the Charging Party were not similarly affected.
• Identify official(s) who made decisions or took action relating to the matter(s) raised in the charge.
• Be specific about date(s), action(s) and location(s) applicable to this case.
• Provide internal investigations of the alleged incidents or grievance hearing reports.
• Inform EEOC if the matter has been resolved or can be resolved; if it can be resolved, please indicate your proposal for resolution.

The statement of position is an important step in responding to the allegations. A good statement of position can make it easier to settle a case or challenge the allegations after the EEOC issues a determination.

Consider Whether to Use Mediation

Companies can settle claims that the EEOC investigates at many stages in the process and can do it before the EEOC gets involved if the claim is settled before the individual files an EEOC charge. In fact, the EEOC has its own mediation/settlement process because it strongly encourages settlement.

The EEOC has a great explanation of why companies should consider mediation:

• It is free.
• It is confidential. Information disclosed in mediation will not be shared with anyone, including EEOC investigators and lawyers, and will not be used against you by EEOC.
• It can save you time and money. Mediation usually occurs early in the charge process, and many mediations are completed in one meeting. If successful, the charge is resolved and you avoid potentially lengthy, uncertain and expensive litigation.
• It allows you to design your own solution. You and the employee determine how to resolve the issue in a mutually acceptable way.

Mediation is often a cheaper option for an employer, but companies must be prepared to accept the consequences of settlement/mediation.

Conclusion

No one wants to face an EEOC charge of discrimination from an employee. These charges often go public and lead to headlines like this: “Absolut Care Denies Pregnant Workers Leave”. The best approach for any company is to have a policy to handle complaints of discrimination and unfair treatment, document any adverse employment action and corrective actions, and train supervisors and staff on issues relating to discrimination.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.