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Train Managers and Supervisors to Limit EEO Liability
 

By Joanne Deschenaux  6/21/2013
 

CHICAGO--Many equal employment opportunity (EEO) lawsuits arise due to the actions of managers and supervisors, Mindy Chapman, Esq., president of Mindy Chapman & Associates LLC in Chicago, said during a Monday concurrent session at the Society for Human Resource Management (SHRM) Annual Conference & Exposition. Common supervisor duties, such as interviewing and hiring, performance management, administration of the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act, and termination, may give rise to discrimination, harassment and retaliation claims.

Extensive training of managers and supervisors and thorough investigation of all complaints can limit an employer’s liability. “No one has ever gotten in trouble with the EEOC [Equal Employment Opportunity Commission] for training or investigating too much,” Chapman said.

Watch Out for ‘Blind Spots’

Chapman divided the universe of knowledge into three categories: 1) things we know we know; 2) things we know we don’t know; and 3) things we don’t know that we don’t know. Items in that last category—our “blind spots”—are the ones that can present problems for HR and for managers and supervisors. It is especially important to address these blind spots given the more aggressive approach the EEOC has been taking in recent years, she said.

In fiscal year (FY) 2012, there were 99,412 charges filed with the agency, as compared to 80,680 charges in FY 1997. The most frequent claims made involved race and sex discrimination and retaliation.

Also in 2012, the EEOC recovered $365.4 million for discrimination claimants, the largest amount ever recovered by the agency. The EEOC is now on Twitter and has its own YouTube station, Chapman said. It is reaching out to employees in “technology-savvy” fashion.

The agency’s 2012-2013 Strategic Enforcement Plan tells agency investigators to scrutinize all individual claims to see if they could be class actions. In addition, the agency announced in May its first class action brought under the Genetic Information Nondiscrimination Act, against a New York employer that asked for family medical history while hiring workers and periodically while they were employed.

And, as of 2013, there are several new protected classes, Chapman noted. The EEOC may now examine employment decisions allegedly made on the basis of employees’ or job applicants’ unemployed status, arrest or conviction records, or credit scores.

The EEOC recently filed charges against BMW and Dollar General for allegedly implementing and utilizing a criminal background policy that results in employees being fired and others being screened out for employment.

“What do protected characteristics mean for us? We never make any employment decision based on that information. We focus only on talent and skills,” Chapman said.

And if managers or supervisors are unsure of the wisdom or legality of a certain course of conduct, they should immediately call HR. If the HR team is unsure, it should call the company’s legal advisors.

“This stuff is tricky, and you don’t get a second bite of the apple,” Chapman said. “In today’s world, it’s just too risky” not to take extra care to comply with EEO laws.

 

Joanne Deschenaux is a senior legal editor for SHRM.

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