You may already know that the Equal Employment Opportunity Commission (“EEOC”), is an agency of the federal government, created by the Civil Rights Act of 1964 (Title VII), for purposes of interpreting and enforcing federal laws prohibiting discrimination. Federal laws prohibit an employer from discriminating against any applicant and/or employee based on race, color, religion, sex (including sexual harassment), age, national origin/ancestry, disability, and veteran status. An employee who feels he or she has been discriminated against based on any of these protected categories may file a charge of discrimination with the EEOC. While the filing of a charge does not constitute a finding that an employer has engaged in discrimination, the EEOC has the authority to investigate whether there is reasonable cause to believe discrimination has occurred.
For those of us who like statistics, a total of 84,254 charges of employment discrimination, harassment, and retaliation were filed against employers with the EEOC in fiscal year 2017. The EEOC resolved 99,109 employment discrimination claims, resulting in $398 million in compensation paid to claimants in 2017. Of the claims resolved, 47% were for retaliation by an employer against a complaining employee.
Once an EEOC charge has been filed, the EEOC will generally request that the employer provide an answer to the claims made in the charge (referred to as the employer’s “position statement”). The process may involve, among other things, conducting interviews, answering questions, and submitting documents to the EEOC. The charging party and the employer will also be given the option to meet in person with the EEOC in an attempt to conciliate, and possibly reach a mutually agreeable settlement. If either party decides it does not want to participate in such a meeting, ultimately, the EEOC will reach a finding and either give the charging party a Notice-of-Right-to-Sue meaning the charging party may file a lawsuit against the employer if he or she so chooses; or the EEOC can determine the employee’s claims involve allegations of egregious conduct and/or allegations which indicate a potential pattern of discrimination, which could then cause the EEOC to file suit on the employee’s behalf. Regardless of the EEOC’s finding, responding to an EEOC charge can be a time-consuming, protracted costly process for the employer.
Of course, an employer’s best defense to avoid EEOC charges and potential liability is prevention. Employers can follow these steps to help reduce the risk of financial and legal exposure, while also fostering a workplace of professionalism and respect for personal differences:
- Establish robust anti-discrimination policies, including equal employment opportunity, anti-harassment, and anti-retaliation policies that are embraced throughout the entire organization. Employers should ensure that these policies are distributed and made available for review at all times by all managers and employees, and that the policies are included in employee handbooks and posted on the employer’s intranet site.
- Provide periodic training to managers and employees on nondiscrimination, harassment, and retaliation policies and enforce such policies equitably. Training should include a clear explanation of what conduct is prohibited, including examples and sample scenarios. Most importantly, employers should enforce the policies and hold both managers and employees accountable for their actions.
- Establish neutral and objective criteria for making employment decisions. It is good practice to analyze responsibilities, functions, and competencies relevant to the various jobs within the organization and create objective, job-related qualification standards related such specific responsibilities and competencies. Employers should apply these consistently when making decisions related to hiring, promotions, performance appraisals, compensation, and decisions that adversely affect an employee’s employment.
- Implement a clear complaint process that provides for multiple and readily accessible avenues for complaints. Employers need to encourage open communication by making sure all employees feel comfortable discussing concerns with supervisors, human resources, and/or a designated person in the organization. If an employee believes they are, or have been, discriminated or retaliated against, it’s important they feel safe and comfortable bringing it up. Fostering early dispute resolution will minimize the changes of misunderstandings that can promptly escalate into an EEOC charge. Provide clear assurances that all employee complaints will be taken seriously and will be promptly and thoroughly investigated. Inform employees that following the impartial investigation of any complaint, the employer will take immediate and appropriate corrective action, if there is evidence of discrimination, harassment, retaliation, or other such conduct. Moreover, assure employees that if they file a complaint or provide information related to complaints, the employer will protect them from retaliation, and follow through with such assurances.
Please contact your assigned Human Resources Business Partner at 1-888-828-5511 if you have any questions.