Would Your Workplace Practices Hold Up in an EEOC Investigation?

Are you aware of the latest statistics from the Equal Employment Opportunity Commission (EEOC) — and what these mean for employers?

The EEOC handled more than 84,000 charges of workplace discrimination in FY 2017, recovering $46.3 million in monetary benefits. In addition, the EEOC reported over 540,000 calls to its toll-free number and more than 155,000 inquiries in field offices.

Because of awareness and action under the #MeToo movement, many experts are predicting a rise in sexual harassment claims. Under this current environment, it’s more important than ever to review and reinforce your compliance practices.

Due to the rise in discrimination charges and stepped-up enforcement by the EEOC, you need to be certain your workplace policies meet all EEOC laws.

What Does the EEOC Look for During an Investigation?

First things first: 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, 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 discrimination-free workplace — and you’ll never encounter a situation that warrants an EEOC investigation. However, to 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.

Spread this essential message throughout your organization 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 make sure they sign a notice indicating they’ve received and reviewed the policy.

• Train managers to identify and prevent discrimination

Regular training should cover equal employment opportunity laws, your anti-discrimination policy and diversity. Employees and managers need to understand their roles in creating an atmosphere of inclusiveness and respect for differences. This awareness is especially important 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

Every business needs to prioritize harassment prevention — especially during this time of heightened awareness and legal action. Learn about common harassment scenarios that get employers into trouble and how to prevent them in this informative e-guide.