WASHINGTON — Knowing the law plus training managers and other personnel to recognize potential problems before a situation deteriorates are keys to avoiding investigations by the U.S. Equal Employment Opportunity Commission, says Brian Hudson, a Washington, D.C.-based labor attorney.
Speaking during a TRSA webinar titled EEOC Challenges, Hudson detailed a few of the laws the EEOC enforces, as well as what an employer might expect if a charge is filed.
The EEOC enforces the laws intended to protect people from discrimination, harassment and retaliation in the workplace. The agency has offices in every state, and any business with 15 or more employees comes under its jurisdiction.
Hudson has represented both employees and employers in hearings with the EEOC as well as in the courtroom and before the National Labor Relations Board, the U.S. Department of Labor and various federal, state and local agencies. He offered various “rules of thumb.”
Almost 100,000 charges of discrimination were investigated by the EEOC in fiscal 2011. The exact number, 99,947, was a record, Hudson says, as was the $364.6 million employers paid as part of the administration enforcement process. Most of the cases are focused on retaliation complaints.
Hudson believes the agency is focusing on “systemic enforcement,” or cases that involved a large number of people.
The EEOC process begins when an employee or a former employee or job applicant files a charge with one of the commission’s 50-plus offices, Hudson says, or with a state office. Charges of discrimination or harassment must be filed federally within 180 days of the alleged act. Many states expand that window to 300 days, if the charges are to be filed under state laws.
The EEOC will notify an employer if a charge has been filed within 10 days. Some charges are dismissed immediately, Hudson says, and EEOC will immediately offer mediation. “(The charge) can be settled right away,” he says, “as long as you’re willing to pay or do whatever they’re asking for. It’s not always a bad choice. Particularly if the employee or applicant isn’t asking for much, or if the person has a legitimate reason … for which there is no real defense.”
Mediation also can be a cost-saving measure for employers, as the financial burden of hiring a specialized attorney, like Hudson, and following the case through the EEOC process and even into court can be enormous.
“So don’t dismiss mediation out of hand, you don’t want to just roll over,” he says. “Many employers rightly fear that bad employees sometimes see this as easy, free money by filing a charge.”
If the case isn’t settled right away, the EEOC will continue to investigate. “They review the allegations, they take evidence from both parties, possibly including a position statement (from the company), request documents and records, interview employees, applicants, former employees,” Hudson says.
If the agency finds cause, it will first try to settle through conciliation, Hudson says, which means the agency gives the company an option as to what to do to settle the claim, most likely what the complainant is asking for, such as reinstatement, back pay or a settlement.
Depending on the facts of the case, the company can make a counter offer. If this fails, the EEOC may file suit in federal court.
The agency also will issue a right-to-sue notice to the complainant if it dismisses the charge, Hudson says. This gives the employee/applicant 90 days to file suit. Under EEOC guidelines, an employee must first file through the agency. When all options have been exhausted, the employee can consider a lawsuit once the EEOC has issued its notice of right to sue. The exception is when a charge is filed under the Equal Pay Act – in this instance, a case can be taken directly to court.
Hudson cautioned participants that charges may often be the prelude to a lawsuit, and a company must proceed as if this were the case.
HOW TO RESPOND
Knowing the law and educating all members of your management team is the best way to minimize exposure. “If you know the law,” Hudson says, “that’s your best defense.”
His top five points:
1. Make sure the right people know about the charge as soon as possible. And the reverse is also true: make sure the people who don’t need to know, don’t. Time limits apply to EEOC charges. If there is no company response, the agency will make a finding and probably find fault.
2. Consult an attorney. Hudson suggests bringing legal counsel on from the beginning, as a way to help a company review the facts and to look over shoulders to ensure everything is done above board.
3. Be sure the company has all the facts and that all evidence is preserved. “Ideally, you have already known this was coming,” he says. “You might have already done an investigation. Start one, if not, and be sure there is no spoliation, or deliberate destruction of evidence.”
4. A company needs to appoint a point of contact, someone to speak on its behalf. Explain the company’s position in a clear, consistent manner, Hudson says. This is normally done through a position statement; lay out all the facts, show the EEOC why there is no case, include documents that back up the company’s position, and don’t change the position.
5. Evaluate all requests for information, interviews and on-site visits. Hudson says the rule of thumb is to respond fully but on the company’s terms. Be sure there are no glaring holes in the information presented. Hold off any on-site visits for as long as possible.
It’s best that a company admits that defending a charge will be an uphill battle. Consider answers in light of potential lawsuits, and be sure all the right parties are aware of the facts and sign off before a settlement or agreement goes out the door.
The attorney recommends that a company train its managers to recognize problems before they can become full-blown claims. Solve the problems before someone decides they need to go to the EEOC, Hudson says.
Many plaintiffs don’t want to sue their employers, he says. Most often, the case comes down to a misunderstanding, and the employer is left with the feeling that he or she has no other choice.
“So by training your managers and front-line supervisors on these laws, …. by giving them the training and investing the time, you can hopefully save yourself a lot of grief,” he says. Training for other employees is a good move as well, he says.
The EEOC enforces several federal laws. The main one, Title VII, applies to businesses that employ 15 or more people, and it covers a lot of ground, Hudson says, when it comes to conditions of employment, including hiring, firing, promotions, disciplinary terminations, and more. This law also covers unwelcome conduct, including sexual harassment and harassment based on religion or national origin. Title VII also covers retaliation.
The Pregnancy Discrimination Act is an amendment that prohibits any discrimination based on pregnancy, childbirth or related medical conditions.
The Equal Pay Act predates Title VII, and is an amendment to the Fair Labor Standards Act. This concerns equal pay for equal work.
The Age Discrimination in Employment Act follows Title VII but is focused solely on age. It prohibits discrimination against an employee who is age 40 or older, while many state discrimination laws allow for claims by employees younger than 40. This law applies to companies with 20 or more employees.
The Americans With Disabilities Act prohibits discrimination and/or harassment based on a qualified individual’s disabilities. An amendment expanded the definition of “disability,” and the EEOC covers those as well as any claims that reasonable accommodations have not been permitted.
The latest law interpreted by the EEOC is the Genetic Information Nondiscrimination Act, which prohibits discrimination based on genetic information, tests of an individual or the immediate family, or on family medical history. For instance, Hudson says, an employer cannot discriminate against an individual if the company learns that the person’s family has a predisposition toward cancer. A company cannot request medical testing, and is subject to strict confidentiality restrictions if any such information comes to the attention of company personnel.
Hudson recommends a company follow written guidelines when hiring. Advertise only when a position is open, and accept applications only during an active hiring phase. Avoid language that may indicate bias when advertising a position, and ask only what is necessary on applications and during interviews. Require the same information from all applicants, such as a written application, a background check or more than one interview.
For employment relationships, Hudson says a company is best served by having written policies and employee handbooks. Train and work with personnel to prevent any types of harassment, and provide reasonable accommodations for those with disabilities.
When firing, Hudson says a company needs to establish and follow set procedures. Document all performance issues, and include progressive discipline measures, such as a warning or warnings, suspension, and then termination. Provide a notice of termination, and consider offering a severance package, as well as a separation-and-release agreement.
All in all, Hudson believes companies can avoid EEOC charges by training personnel, adhering to written policies that are directed to everyone, and by knowing the law. He suggests visiting the EEOC website, eeoc.gov, to learn more.