How to Avoid Common Mistakes When Handling an EEOC Complaint
If you run a big company long enough, complaints about harassment and discrimination at work are bound to find their way to your doorstep. It’s one thing when such complaints are handled internally.
It’s quite another when you receive a letter from the Employment Opportunity Commission (EEOC) informing you that a discrimination charge has been brought forward by one of your employees and the commission is commencing investigations on the matter.
EEOC complaints can have huge impacts on your business.
If the matter goes to court, it turn out be a long, exhausting, and financially draining litigation process.
In addition, it could completely tarnish your company’s image and drive away both customers and potential hires in future.
It could also lead to high employee turnover as your best people start to look for greener pastures elsewhere.
The point here is that EEOC complaints are no trivial matter.
They must be handled with extreme care if you want your company to survive one without being scathed.
In this article, we take an in-depth look into EEOC complaints and some common mistakes to avoid when dealing with an EEOC complaint.
WHAT IS AN EEOC COMPLAINT?
EEOC stands for Employment Opportunity Commission. It is the US federal agency responsible for administration and enforcing of civil rights laws in the event of discrimination at the workplace.
The commission has the mandate to investigate cases of people suffering discrimination at the workplace because of their race, religion, sex, national origin, age, disability, gender identity, genetic information, sexual orientation, as well as cases of retaliation after reporting, opposing, or participating in a discriminatory practice.
In 2018, the EEOC received a total of 76,418 complaints.
Most of these were retaliations.
Other big offenders included race, sex, and disability-related complaints.
In that year alone, the commission received over 554,000 calls and emails, handled over 200,000 enquiries relating to potential discrimination claims.
In the course of the year, the EEOC filed 199 lawsuits, filed 29 amicus curiae briefs, and resolved 141 lawsuits.
WHAT HAPPENS WHEN SOMEONE FILES A COMPLAINT?
The commission uses a variety of techniques to investigate a complaint – each case is different, with different circumstances requiring a different approach.
If someone in your company files a discrimination complaint, the EEOC might send over an investigator to the office/workplace.
Another case might involve talking to potential witnesses via phone or asking your company to give written information to the commission.
The EEOC asks the employer to respond to the charge with a position statement (that is give their side of the story).
Furthermore, the commission may also ask the company to produce documents and any other information that relates to the EEOC charge.
If your company ever receives an EEOC charge or subpoena, this is the smart way to respond:
- Don’t blow off the charge.
- Call your lawyer.
- If you have taken insurance to cover such situations (employment practices liability insurance – EPLI), notify your insurance carrier about the charge.
- The commission usually offers the company an opportunity for mediation. Consider it seriously. In many cases, you can resolve the charge and get a general release, and save the money you would have spent litigating the claim in court.
- On the other hand, if you don’t wish to mediate or settle, do not ignore the EEOC’s request for documents or reply noncommittally. What you could do instead is contact the EEOC investigator and politely explain why the commission should narrow down and tailor its request. Consult your lawyer for advice on the best approach to take.
- Be reasonable, be selective – Do not object merely on grounds of principle. Develop a strong argument based on the information they are seeking and the scope of the filed complaint.
- Even when objecting, ensure you provide the commission with the information that they are entitled to receive.
- Keep good records of your negotiations with the agency in the course of the investigation. Send letters to confirm any verbal agreements and conversations. In case matters end up in court, you want to prove that you cooperated.
WHAT HAPPENS WHEN YOU DON’T HANDLE EEOC COMPLAINTS PROPERLY?
It is important that you handle an EEOC complaint properly.
Failure to do so can have several negative repercussions for your company, including:
Costly litigation – If you cooperate, you might resolve the issue through mediation or a settlement. If you don’t, the EEOC may sue you. Even if it doesn’t sue, the employee who filed the complaint has the right to do so. This will translate to a litigation that is costly in more ways than one, including steep legal expenses and bad publicity that eats into your bottom line.
Penalties and indemnifications – Whether you resolve the case through litigation, settlement, or mediation, you as the employers are still required to pay penalties for the EEOC complainants. You might be required to pay their back wages, reinstate them, and in some cases, promote them. You could even be ordered to pay their legal expense. If it goes to court and you lose, the court may award punitive and compensatory damages to the complainants. How you handle the situation determines how much you end up spending.
Loss of reputation – This is particularly pertinent if you operate in a competitive market where customers are spoilt for choice. Customers stay with you because of their perception of your company. If your company’s reputation is ruined, this could result in some customers shunning your company. Potential employees will also have qualms about working for your company.
Labor turnover – If you handle the EEOC complaint wrongly, your other employees will realize they work in an unfriendly work environment and will be more likely to leave, especially your best people.
COMMON EEOC COMPLAINTS
Common EEOC complaints are based on at least one or a combination of the following discriminations/situations: sex, race, religion, national origin, color, disability, age, equal pay, genetic information discrimination, or retaliations.
This occurs when someone at a workplace (an applicant or employee) receives unfair treatment on account of their sex.
It includes discriminating against them because of their gender identity and their sexual orientation.
Race discrimination is when someone is treated unfairly because they belong to a certain race or have certain personal characteristics associated with race – like skin color, hair texture, or certain facial features.
Religion discrimination pertains unfair treatment on account of one’s religious beliefs.
The law protects those who belong to traditional, organized religions as well as those who have sincerely held religious, moral, or ethical beliefs.
This involves treating people unfairly because of their ethnicity, accent, country or part of the world they come from, or because they appear to belong to a certain ethnic background.
It is unlawful for employers to hire only US citizens or lawful permanent residents unless the law, regulation, or government contract requires them to do so.
Disability discrimination is when a qualified person with a disability receives unfavorable treatment because of their disability.
According to the Americans with Disabilities Act, employers should provide reasonable accommodation for employees or job applicants with disabilities, unless this would cause undue hardship for the employer.
The Age Discrimination in Employment Act (ADEA) protects persons who are 40 and older from discrimination.
While it does not expressly protect younger workers, some states do have laws that prohibit age discrimination among younger workers.
The Equal Pay Act requires people to receive equal pay for equal work. The jobs don’t have to be identical, so long as they are substantially equal. Equality is determined by job content not job title. The law covers all forms of pay.
This involves unfavorable treatment of a woman because of childbirth, pregnancy, or a medical condition related to the two.
Women are protected from this kind of discrimination by the Pregnancy Discrimination Act (PDA).
The Genetic Information Nondiscrimination Act (GINA) protects employees from genetic information discrimination. Employers should not use genetic information when making employment decisions.
An example of genetic information is information about a disease or disorder in a person’s family medical history.
Complaints against retaliation are the highest in number of all EEOC complaints. Retaliation occurs when an employer retaliates against employees for doing any of the following things:
- Filing EEOC complaints
- Being a witness in an EEOC charge
- Communicating with a supervisor or manager about employment discrimination
- Refusing to obey orders that would lead to discrimination
- Resisting sexual advances or intervening to protect someone else from sexual harassment
- Asking for accommodation of a religious practice or disability
- Asking coworkers or managers about salary information in a bid to reveal potentially discriminatory wages.
- Answering questions during an investigation of alleged harassment at the workplace
COMMON EEOC MISTAKES AND HOW TO AVOID THEM
If you own or run a company, there is a high chance you will get hit with an EEOC complaint at some point, if it hasn’t happened already.
When this happens, there is a right approach and a wrong approach.
Some employers react without prior deliberation, no plan, and it comes back to bite them when the case ends up in a courtroom.
The following are the most common mistakes employers make and how you can steer clear of them:
Ignoring the Complaint
Upon receiving a complaint from the EEOC, some employers may choose to ignore the complaints for a variety of reasons, such as assuming that the EEOC does not apply to their business because they employ less than 15 employees, or assuming that the charge is not something serious.
Regardless of the number of people working under your company, or any other circumstances, you should take an EEOC complaint very seriously, and under no conditions should you ignore the complaint.
For instance, racial discrimination cases have a law known as Section 1981 which supersedes the Title VII of the Civil Rights Act. Section 1981 covers all employees, regardless of a company’s size.
Furthermore, Fair Employment Practices Agencies (FEPAs), which apply to counties and states, may offer protection to employees where the EEOC can’t.
Our advice is that you should cooperate with the EEOC investigators.
If you have a lawyer, call them, ask for their advice on how to approach the situation, learn what loopholes there are or what booby traps are in the law that you should watch out for.
If you ignore the EEOC, they will probably slap your company with a subpoena, and if the matter does end up in court, the judge will have a simple decision to make since it will be clear that you did not cooperate at all or even communicate with the EEOC.
In other words, you need to be strategic. Give in a little, but with your eye on the endgame.
It will give you and your lawyers[s] time to come up with a plan of action and sort through your different options, which include objecting, mediation, or out of court settlement.
Not Being Proactive
Don’t wait for the EEOC to do all the investigating. They could miss something or look in the wrong place.
Since you know your own company better than they do, you are likely to find more information than they do.
Once you are notified of the EEOC complaint, you should start your own internal investigation into the matter in order to find out the veracity of the complaint.
Carrying out your own investigation will also help you to determine how deeply it goes, with the ultimate aim of putting an end to discrimination and harassment in your company.
When carrying out your investigation, seek the counsel of your lawyers as well as the advice of human resource professionals. Be very careful who you select for the job of investigating.
Look for someone who has a broad experience and a good understanding of discrimination law.
It’s wiser to use outside consultants on the matter because you don’t want the investigator to have any connection to the allegations or any interest whatsoever in the outcome.
Keep in mind that this person might be summoned as a witness in case of litigation.
You need someone ethical, someone you can trust.
Ensure the investigator has access to any documents relevant to the investigation – hardcopy, electronic documents, emails, personnel files, managers’ desk files and notes, performance reviews, HR policies, HR files that pertain to the complainant, the accused, the possible witnesses, and so on.
Communicate to your people that no documents should be destroyed as this can ruin the investigation, both yours and the commission’s and put you in a precarious position in the eyes of the EEOC.
After completing the investigation, determine if any discrimination occurred.
Develop and implement a plan on how to address the inappropriate behavior, illegal or not.
Inappropriate behavior, even when seemingly harmless is not something you want tolerate in your workplace as it can balloon into something undesirable.
Meanwhile, the results of your investigation will determine what course you should take with the EEOC – go for an out of court settlement, mediation, or fully cooperate with the commission and await its decision.
As with most situations in life and business, if you don’t take the reins and control the situation, you and your company will be passive participants who react to things instead of active participants who chart their own course.
If you say one thing today and say another tomorrow, it hurts the perception you convey to the investigators and eventually, if matters take that route, to the court.
That’s why it’s so important that you take the EEOC complaint seriously and be proactive in gathering all the necessary information you need with the help of your legal counsel, your human resource department, and an internal investigation.
It’s important to think things through clearly, ensuring that you are not frivolous when articulating your position statement. You don’t want to leave out any important information or any reasons that explain the situation.
If you leave out information in your statement and later after the initial confusion subsides you want to enhance your statement at court with new or different information, the court is likely to view such inconsistency unfavorably.
It gives the court grounds to consider your reasons as pretexts and ultimately gives it a justification to decide against you.
Therefore, take great pains to ensure your position statement articulates everything accurately and clearly.
As I mentioned, retaliations make up the bulk of EEOC complaints. Retaliating is the worst mistake you can make in handling an EEOC complaint.
First of all, retaliation is itself one of the types of workplace discrimination that the EEOC has the mandate to investigate.
Even if the original complaint lacked merit, retaliation makes the EEOC investigator and the court more likely to side with the complainant.
Furthermore, it opens a new charge against you, which the court will most certainly convict you for, even when taking your side in the original discrimination charge.
There is one thing about such cases – no matter how hard you press down on the lid, given enough time and a proper investigation, the truth will always reveal itself eventually.
Destroying evidence may seem like a good decision at the time, but it is not so wise in the long-term.
Any attempts to conceal, destroy, or falsify documents/evidence are illegal and will come back to haunt you. Simply don’t do it.
At the end of the day, remember you are running a business.
What matters most in a business is the bottom line. You should make decisions based on how they affect your company’s profitability.
A hardline stance may give you a good feeling of standing your ground, but if in the long run it leads to expenses which your company can’t afford to pay, is it really worth it?
Some employers are skeptical of the EEOC’s mediation program, unable to conceive that EEOC mediators can act with any fairness to the employers.
This is a mistaken point of view. EEOC mediators are, in fact, fair and savvy.
It is their job is to facilitate economical resolutions where possible.
Of course not every case should go the mediation route – sometimes clearing the company’s name is more important.
Yes, we talked about being strategic, but some tactics are ultimately self-harming.
Delay can be a legitimate strategy in some cases, but it’s generally not, particularly if you don’t have an endgame in mind.
One way delaying cooperation can harm you is in the accrual of back pay and back benefits that you are expected to pay the complainant.
In other words, the more you delay, the more money you will have to take out of your pocket to pay the complainant.
Moreover, if the matter goes to court, your slow cooperation won’t win any points in your favors.
Working on Your Own
What you need when a legal problem such as this crops up is practical, avoid the temptation to handle the matter by yourself.
Solid advice from an experienced, knowledgeable legal professional – a lawyer who has a good understanding of discrimination laws and preferably experience dealing with such cases.
In truth, many of the mistakes we have listed here would be avoided if you had a good lawyer in your corner to tell you what to do and what not to do.
Furthermore, lawyers have their own way of communicating with each other, and you will make faster progress if you have a lawyer communicating on your behalf with the EEOC lawyers.
When faced with an EEOC complaint, it is of utmost importance to handle the complaint carefully. Do not react without thinking. Do not ignore the complaint, do not retaliate, and do not react with unnecessary aggression.
Cooperate where cooperation is logical.
Object where objection is logical. Talk to a lawyer. Conduct an internal investigation.
You will also need to decide how you will play it. Will you wait for the commission’s decision, settle, or go for mediation?
Think long-term, not short-term. Think of your company’s best interests.
Above all, put in place mechanisms in your organization that ensure cases of discrimination either don’t happen or are dealt with swiftly before they escalate because in the long run they are very costly.
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