EEOC Chair Cari Dominguez, attempting to create less stress during an EEOC complaint investigation, decided to provide employers with their top ten typical mistakes when dealing with EEOC. After polling legal staff, just nine “judgment lapses” were found. Think of these recommendations as nine nifty ways to minimize conflict with EEOC. Come…as we explore this EEO ZONE.
1. Employer underestimates EEOC. Chair Dominguez indicates that many employers and their legal representatives underestimate the professionalism and ability of EEOC staff. Although no federal agency can rightfully make the comprehensive statement that all employees are knowledgeable and professional, it must be understood that the EEOC does have “the power.” Do not misjudge the knowledge, ability, and motivation of their investigators and legal staff. Be prepared – don’t scrimp on proper record maintenance – from shift assignments to terminations, then stay out of EEOC’s line of vision by playing fair and having a respectful work environment.
2. Employer doesn’t communicate. Chair Dominguez said many employers and their legal staff fail to stay in touch with the EEOC during investigations. Maybe this is a case of “what goes around, comes around,” since this is an area for improvement also for the EEOC. Notwithstanding that fact, employers should place investigations as top priority when EEOC comes knocking. Once the complaint has been made, the employer has the burden to show actions were nondiscriminatory.
3. Employer is dismissive. Possibly these are the same employers who believe the White House will not provide adequate budget for the EEOC to escort the bad guys to court. No doubt litigation by EEOC is not the norm. Most cases end with either a dismissal or notice of rights; however, do not disregard the number of cases that have made it to and through the litigation process (do I hear consumers chanting, “guilty until proven innocent”). Class action cases are the quickest way to make it to court and if you make it there, be prepared for a grueling fight. The EEOC is generally a hard-working and effective rival for any employer when they believe discrimination exists.
4. Employer retaliates. If an employee files a charge, testifies against an employer, etc., or if an employee opposes discriminatory activity, the employer cannot retaliate. An act of vengeance should be an antique thought; however, it is not. Retaliation charges make up approx. 28% of all of EEOC’s charges. Revenge can be a strong motivator…don’t let it motivate you in court. Even if the original charge is unfounded, the employer could still be found guilty of retaliation discrimination.
5. Employers don’t mediate. As a Lead Mediator, I can tell you this dispute resolution process, if appropriately administered, can be very effective. Passing up mediation, when offered, can suggest that you have no intention of resolution…or to even listen to the employee(s).
6. Employers wait. Chair Dominguez references delay tactics some employers use in an attempt to weaken the EEOC. If this is your tactic, now hear this: If found guilty, the liability, e.g., back pay, continues to accrue until the case is closed. It is hard to imagine that this is one of the top nine judgment lapses, since it appears most employers want the case completed and closed as quickly as possible. Get the lead out and respond timely.
7. Employers act inappropriately. Do you have an effective EEO Policy? Do you have a procedure to process EEO complaints of discrimination? Do your managers and employees know and understand their legal obligations under the EEO laws? Do you act quickly and appropriately when allegations of discrimination are made? If an employer can answer yes to these questions (without crossing fingers), it very well may be that there is no liability assessed. If you are guilty, correct it sooner than later.
8. Employers prevaricate. I want to believe that employers who act illegally through cover up, destruction of evidence, or threatening witnesses are few and far between; however, my Pollyanna side may be showing. As a federal EEO Compliance Officer, I have witnessed this behavior. Trust me when I say that things will only get worse if you are not open and honest with the feds.
9. Employers don’t calibrate. This is the EEOC’s top complaint. Many employers are not proactive with EEO laws, waiting until the risk becomes the problem. If you are a medium to large employer (over 50), it would behoove you have an EEO plan of action. This should be include (but not be limited to) an understanding of the recruitment area minority and female employee representations, the impact personnel actions may have against minorities or women, and the recommendations found in #7. The Civil Rights laws have been on the books for over 40 years – there is no excuse for ignorance.
A final note: A concern for the employer should be the neutrality of the investigation. Plain and not so simple – most federal agencies have to show numbers and dollars to justify their existence. If settlements aren’t collected, how can Congress justify a budget? I refer to this as quiet quotas. There is motivation to find violations…so don’t give the reason to look. Respecting the EEOC’s abilities, knowing your legal requirements, and treating all employees equally will go far in keeping you away from the dark side of the EEO Zone.
By: Hanna Yurkovetskaya