Would Your Workplace Practices Hold Up in an EEOC Investigation?

Although the COVID-19 pandemic has dominated our attention in 2020, employers must remain vigilant about maintaining an inclusive, diverse workplace free of harassment or discrimination. Recent statistics from the Equal Employment Opportunity Commission (EEOC) indicate concerns in these areas and highlight the need for businesses to step up their efforts to avoid an EEOC investigation.

The EEOC handled more than 72,000 charges of workplace discrimination in 2019, as well as 7,514 sexual harassment allegations resulting in over $68 million in settlements. And in 2020, despite the challenges with the pandemic, the agency continues to enforce the nation’s employment non-discrimination laws in accordance with public health guidelines. To be clear: The EEOC is still accepting new charges, as well as investigating existing ones.

As in years past,  it’s critical to review your compliance practices and strengthen any areas that could get your business in legal trouble.

What the EEOC Looks for During an Investigation

Do you know what triggers an EEOC investigation at your workplace — and how to respond?

The charge process typically begins when an employee (or former employee) files a harassment or discrimination complaint with the local EEOC office. The EEOC will notify the business within 10 days of receiving the charge and send a copy of the formal “charge of discrimination.”

This notification identifies the complainant, the type of alleged discrimination (e.g., race, religion, sex, etc.), the alleged discriminatory act (e.g., unequal wages, harassment, termination, retaliation, etc.), and the date of the last act of alleged discrimination.

If you participate in the optional mediation program, and a mutually agreeable settlement is reached, the charge may be dismissed. However, if this mediation is unsuccessful, the EEOC will ask you to submit a “position statement” regarding the allegations. In addition, and in typical, non-COVID times, the EEOC may conduct an on-site visit to:

• Tour the premises and check for obvious violations (such as lack of required workplace postings)
• Question the witnesses to verify the facts in the position statement
• Interview HR personnel involved in the case to determine their knowledge of applicable laws
• Verify whether adequate anti-harassment employee training has been provided

After the investigator has gathered enough evidence to make a determination, he or she will close the investigation and issue a written report of the findings.

Steps to Protect Your Business from an EEOC Investigation

Ideally, your workplace policies and practices support a respectful, discrimination-free workplace — and you’ll never encounter a situation that warrants an EEOC investigation. However, to fully protect your business, you should:

• Display current labor law posters in a highly visible spot — Under federal law, an “Equal Employment Opportunity is the Law” posting is mandatory for all covered employers. Not only must this poster be up to date, but it also should be displayed prominently for all employees and applicants to see. If a complaint is filed and the EEOC conducts a workplace investigation, the investigator from the EEOC most certainly will check for this required labor law poster. In several EEOC discrimination cases, charges either were dropped or decisions made in favor of the employer just because this mandatory posting was displayed.

• Communicate your anti-discrimination policy and procedures — Your anti-discrimination policy sets the foundation for what is acceptable in the workplace, stating that your organization is committed to ensuring equal opportunity for all people, regardless of race, color, religion, sex, national origin, age, disability, sexual orientation and gender identity.

Disseminate this essential message through your employee handbook, postings, job applications and other employee-facing communications. Make sure all employees receive a copy of your anti-discrimination policy, and have them sign an acknowledgment form indicating they’ve received and reviewed the policy.

• Conduct regular training with employees and managers — Educating employees and managers on what constitutes harassing behavior is a critical step toward preventing it. Training should cover the many forms of improper conduct, such as physical, verbal, visual and indirect harassment, as well as what employees should do if they experience or witness it. Also consider anti-bias training that discusses the value of diversity, the need to respect differences and the specific actions that can be taken to create a more inclusive work environment. Together, these training programs can help create a healthier, more harmonious workplace.

Clear, anti-discrimination practices are especially important among managers when hiring, promoting or disciplining employees.

• Handle complaints promptly and decisively — To maintain a workplace free of discrimination, management must support those who raise complaints as well as those who investigate and resolve these complaints. Be certain that your employees have multiple ways to report discrimination (for example, in case a supervisor is the cause of the problem).
• Document everything — Detailed and proper documentation is critical in discrimination claims. Conduct evaluations fairly and honestly — and maintain copies of all performance reviews. In addition, managers should document disciplinary incidents, including the expectations for improvement and the consequences for continued poor performance. This information can help protect your company from a wrongful termination lawsuit if you choose to fire an employee.

Avoid Missteps That Could Lead to an EEOC Investigation

Regardless of the challenges presented with the COVID-19 pandemic, every business needs to prioritize their harassment and discrimination prevention practices. For additional resources and solutions to support these efforts, visit this page.