To Avoid EEOC Actions, Create Policies, Train in Advance

​As topics like #MeToo and workplace bias receive continued attention, the importance of understanding how the Equal Employment Opportunity Commission (EEOC) works will only grow. For one thing, experts say, the EEOC's procedures are complicated and evolving. For another, many companies work under misconceptions that could complicate an already messy situation should they ever be the target of a complaint.

The EEOC is the federal agency charged with enforcing laws that prohibit discrimination in the workplace. While the actions it takes apply to civil law rather than criminal, employers shouldn't underestimate the impact its investigations can have on their business.

Unfavorable outcomes are almost sure to have financial consequences, but even just the process of reacting to complaints usually requires significant amounts of time spent by several people. "Responding to the charge and preparing witnesses for interviews as part of the investigation can be time-consuming and disruptive to day-to-day operations and have a negative impact on employee morale," explained Angela Vogel, an employment attorney in the Bellevue, Wash., office of law firm Davis Wright Tremaine.

Moreover, many employers believe investigations will be finished quickly once they've responded to a charge. Vogel said this is a misconception. While the EEOC says the average investigation takes 10 months to complete, she said, "in my experience, it typically takes longer." The investigator involved, the agency's overall workload, the types of information it needs and the facts of the case all impact the timeline.

Traps and Strategies

In fiscal year 2018, the EEOC received more than 76,000 charges. Typically, complaints come from employees who've gone directly to the commission without the aid of an attorney. That's another important dynamic that many employers don't recognize, said Shelton Blease, director of HR operations for the Atlanta-based recruiting firm Lucas Group. When the EEOC finds evidence of discrimination, the agency can bring a lawsuit on the employee's behalf. "So the employee doesn't even need to have legal counsel to go through this process," he said.

Employers aren't necessarily out of the woods when the EEOC finds no merit in a complaint or a lawsuit is dismissed. If the agency issues a Dismissal and Notice of Rights, which means it couldn't find evidence of discrimination, employees can proceed with their own federal lawsuit within 90 days. That's why, Vogel said, "it's critical to be strategic" when the complaint is working its way through the EEOC's process: The information employers provide during the agency's investigation could be used by the complainant and his or her counsel.

And employers must provide a significant amount of information. Typically, Vogel said, the EEOC will ask an employer to submit a position statement that includes its response to the allegation. However, the agency may request additional information on company policies, personnel and other material it deems to be relevant.

Because of all this, employers should be cautious as they draft and submit material in response to the EEOC's requests. The information employers provide "could impact their defense in an eventual lawsuit," Vogel said. She suggests that companies remain mindful of what they say during the investigation, "because facts that emerge later in litigation could undermine statements made at the EEOC stage and create potential credibility issues."

In addition, an employer should move quickly when it receives a complaint and inform the worker involved that it's doing so. "This helps employees understand that they've been heard, that the issue is being addressed and that retaliation will not be tolerated," she explained.

Having a process in place to address concerns demonstrates to employees that EEOC issues—and maintaining a respectful workplace—are important to the organization.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Beware of Retaliation

In 2018, more than half of the complaints the EEOC received involved retaliation. As the agency describes it, retaliation occurs when a manager attempts to, in effect, punish an employee "for filing a complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination." The agency takes these complaints seriously, approaching them in the same way it does allegations of discrimination.

According to Adam Calli, principal consultant at Arc Human Capital in Woodbridge, Va., retaliation often is where many employers "snatch defeat from the jaws of victory." Organizations may win on the discrimination claim, he explained, but lose a retaliation claim when a manager, for example, attempts to block an employee's promotion, refuses the use of a company vehicle, or discharges an employee in retaliation for his or her discrimination claim.

"[The employer's] response created a second problem, and now they might actually end up with fines … because of the second issue, even when they got off free on the first one," Calli said.

The Best Protections: Policies and Training

Most experts say there are two keys to minimizing employer exposure to EEOC actions: Have clear policies in place, and train managers and employees on how to understand and follow them.

Policies should include procedures describing how employees can raise concerns about discrimination and what the employer will do to address them. In addition, employers should make clear that retaliation is prohibited—no one can try to make an employee "pay" for filing a complaint with the EEOC or bringing an issue to the employer's attention.

"Having policies that are clear on how to report concerns and educating employees on the process helps to set up a framework where employees are comfortable raising concerns and managers are more adept at making sure the concerns get to the right place—HR," Vogel said.

It's not enough to create policies. Both employees and managers should receive regular training on harassment and discrimination. This includes education about reporting concerns and how to identify and escalate concerns. When organizations investigate issues and take appropriate action in a timely manner, Vogel said, employees are less inclined to file a charge. Enacting policies and training "won't alleviate the risk," she said, "but it certainly helps minimize it because of the employer's responsiveness."

The importance to avoiding issues during the hiring process calls for training, as well. "You have to train the people who are doing the hiring," Calli said. Hiring people whose values are in tune with the company's requires making sure managers understand how to interview effectively and probe for the characteristics that will help candidates align with the way the business operates.

Culture goes a long way toward preventing discrimination from rearing its head, Calli noted. "The first thing I would say is have a strong culture and reinforce it," he said. "Are you really a company that believes in treating people equally and fairly? Because if the answer's yes, that will come out in the way you do business on a day-to day-basis, the way people talk to each other and the way your managers talk to their employees. If you don't have a strong culture around that, then all the other things are only going to be marginally useful."

Mark Feffer is a freelance business writer based in Philadelphia.

[SHRM members-only HR form: EEO-1 Reporting Checklist]