The best way to avoid charges of discrimination from the Equal Employment Opportunity Commission (EEOC) or other fair employment practices agencies is to proactively establish consistent employment practices and policies that spell out the expectations for workplace interactions and communications. Providing awareness training for employees and managers should also be a top priority.
According to the EEOC, the top five employment complaints reported nationwide in fiscal year 2014 were:
- Retaliation (42.8 percent of claims)
- Sex (including pregnancy)
Despite your best efforts, if your company finds itself facing a charge of discrimination, what steps should you take?
Follow the EEOC’s rules closely
When a charge is filed against your company with the EEOC, you will be notified and provided basic information about the nature of the complaint, as well as options for how you must respond to the charge. It is important to note that a charge does not mean that your company has been found to be discriminatory, but just that a complaint has been made.
In many cases, you may be able to resolve a charge early through mediation and/or settlement. If you elect not to engage in early mediation, you will be asked to provide information that explains why your business took alleged employment action that is being complained about, as well as the legitimate business reason for those actions.
- This includes:
- A statement of position. This is your opportunity to tell your side of the story
- A request for information (RFI) that may include copies of personnel policies, the charging party’s personnel files, the personnel files of other individuals and other relevant information
- An on-site visit
- Employee contact information for witness interviews
You are encouraged to present any facts that you believe show the allegations are incorrect or do not amount to a violation of the law.
Protect yourself with proper policy and training
Employers should have an up-to-date equal employment opportunity (EEO) policy in place that includes definitive procedures to process employee complaints of discrimination.
Training managers and employees on how to maintain a workplace free from discrimination and harassment can help prevent EEO complaints. And, if a complaint is received, showing the EEOC that your business has a history of commitment to harassment and discrimination prevention is an integral defense.
Protect your business through recordkeeping
The EEOC requires employers to keep all personnel and employment records for one year. In addition, other federal recordkeeping requirements are:
- If an employee is involuntarily terminated, keep those personnel records for one year from the date of termination
- Retain all payroll records for three years
- Keep files on any employee benefit plans, such as pension and insurance plans, and any written seniority or merit system for the full period the plan or system is in effect and for at least one year after its termination
- All records, including wage rates, job evaluations, seniority and merit systems, and collective bargaining agreements that explain why employees in the same establishment were paid different wages
These requirements apply to all employers covered by federal anti-discrimination laws, regardless of whether a charge has been filed against the employer. To learn more about federally required recordkeeping, go to the Summary of Selected Recordkeeping Obligations in 29 CFR Part 1602.
Discrimination can be costly
If the EEOC determines that an employee has been the target of discrimination or harassment, the agency’s key objective is to put the victim of discrimination in as close to the same position, job wise and money wise, as he or she would have been if the discrimination had never occurred.
Depending on the type of discrimination and its severity, the victim may receive a job placement, back pay and benefits. A victim of discrimination also may be able to recover attorney’s fees, expert witness fees and court costs.
Other costs your company may be required to pay includes out-of-pocket expenses caused by the discrimination, such as costs associated with a job search or medical expenses, and emotional harm suffered, such as mental anguish, inconvenience or loss of enjoyment of life.
Finally, punitive damages may be awarded to punish an employer who has been particularly malicious or reckless. The limits to these damages vary by company size, and can amount to as much as $300,000. In addition, your business will be required to comply with training obligations and notifications to employees, and to verify that you remain compliant with the mandates.
EEOC enforcement priorities through 2016
Employers can expect the EEOC to pay special attention to cases that fall into these categories through 2016:
- Eliminating barriers in recruitment and hiring for racial, ethnic and religious groups, older workers, women and people with disabilities
- Protecting immigrant, migrant and other vulnerable workers against disparate pay, job segregation, harassment, trafficking and discriminatory policies
- Enforcing equal pay laws
- Preserving access to the legal system
- Preventing harassment through systemic enforcement and targeted outreach
Finally, the EEOC is devoting extra attention to what it calls “emerging and developing issues” including issues associated with significant events, demographic changes, developing theories, new legislation, judicial decisions and administrative interpretations. Examples of emerging issues cited by the EEOC are certain ADA, pregnancy and sexual orientation and transgender issues.
Protect your business by taking a more proactive approach to your HR policies. Download your copy of our guide, 7 Most Frequent HR Mistakes and How to Avoid Them, get a better handle on your own HR practices.