If you thought workplaces have never been more inclusive and accepting, prepare to be shocked.
A whopping 61,331 workplace discrimination charges were filed with the Equal Employment Opportunity Commission in the year-ending September 30, 2021.
While the numbers might be down overall [there were nearly 85,000 in 2017], the fact is there is still a significant number of employees who either feel unsafe, unwelcome, or under-valued.
The business implications of this are easy to understand. Employees lose faith organizations when discriminatory behavior goes unchecked. Companies start to gain a poor reputation. This leads to higher employee turnover, less top talent applying to open positions, and lost business. Moreover, if a company culture is exclusionary and toxic, employees won’t feel safe raising issues, allowing these behaviors to sadly continue.
There are, of course, basics that employers can put in place to ensure discriminatory incidents are resolved internally and never escalate to the point of getting the EEOC. There are also measures firms can take to protect against claims coming in the first place – everything from having a speak-up culture, to a robust whistleblower policy, and implementing a discrimination and harassment reporting system.
But what should HRDs do if the EEOC comes calling at your door, and your team is facing an actual investigation?
It can feel like an overwhelming experience, but it doesn’t have to be – especially if you understand and prepare for each of the specific steps.
What to expect with a case:
The investigation process begins when a current, former, or potential employee files a charge with the EEOC via telephone, in person at an office, online, or by mail. Charges must generally be made within 180 days of the last discriminatory act and do not need to be filed by the victim direct.
A charge may be assigned priority if the preliminary facts indicate a violation occurred. It must also be noted, however, that a charge can also be dismissed at any point in time if the EEOC concludes the incident did not violate any of the laws they enforce.
The EEOC has ten days to send a notice to the accused (ie the organization), explaining that a charge has been brought up against them and what the details are of the allegation(s). When an HRDs receives this letter, they should carefully consider who they need to share it with. This could include:
- Whoever is responsible for handling investigations within the company
- Internal legal department or an outside legal representative
- Compliance department
The employer must send a return letter to the EEOC, complete with the name of the legal representative who will handle the situation and respond to requests. Once this letter is received, the EEOC will launch a formal investigation.
The EEOC will inform the HRD if the claim is eligible to be resolved via mediation, which can resolve the issue more quickly and cheaply, with a mutually-beneficial outcome for the company and the complainant.
To aid in the investigation, the employer may be expected to tell their side of the story – through what’s formally called a “position statement.”
The respondent typically has 30 days to submit their statement and relevant, supporting documents.
The employer will also receive a Request for Information (RFI), which requires it to answer questions, supply relevant documents (such as workplace policies and personnel files), participate in interviews, provide employee information and permit on-site visits.
Based on the investigation, the EEOC will determine whether sufficient reasonable cause exists to believe a violation occurred.
If the investigation does not provide sufficient reasonable cause, the EEOC dismisses the charge and closes the case. The accuser has a right to file a lawsuit regardless of the findings within 90 days.
If there is sufficient reasonable cause, the EEOC will write a determination letter containing a brief summary of their decision and supporting reasons.
How to speed up the process
An investigation can be costly for an employer, even one that is not guilty.
RFI’s are time-consuming and take valuable resources away from other projects. Even if a company’s innocence is proven in court, there will still be large legal bills and damaging publicity to deal with.
Because the costs are so great, it’s best to simplify and fast-track the process. Here’s how:
- The investigation process is much quicker when both parties cooperate and participate. Don’t refuse to attend interviews or provide documentation. The complaint is less likely to go to court (saving employers time, money, and negative publicity), when everyone takes the process seriously.
- Be responsive. Providing files in a timely manner fast-tracks the investigation and keeps the agency happy. It also demonstrates openness and transparency, showing that your organization has nothing to hide.
- It’s all about the records! An employer without up-to-date, organized files directly slows the investigation process. The longer you spend tracking down documents, the more likely you are to miss a deadline. Using case management software can help to ensure organized, accurate, up-to-date information is available any time you need it.
Resolution: Your options
The EEOC is legally required to first attempt conciliation to remedy the incident. Conciliation is an opportunity to negotiate how your organization should change its procedures and decide on remedies for those affected.
At any point before or during the investigation process, the victim and employer can attempt mediation or an out-of-court settlement resolution. Both are voluntary and effective resolution options. Compared to a lawsuit, these choices are less stressful and time-consuming and reduce the disruption this type of issue could cause. Mediation and settlements are also relatively inexpensive because they avoid litigation.
If you agree to mediation or a settlement, you’re not admitting wrongdoing. Instead, you’ve simply decided to resolve the complaint informally.
Mediation often leads to the employer changing their internal policies and/or procedures and providing a fair sum to the victim.
Settling is another voluntary resolution that can occur at any point in the investigation process. Similar to mediation, settling is informal, avoids lengthy legal battles, and does not require the accused to admit liability. The main difference between the two is the involvement of a third-party mediator.
It goes without saying that the dreaded court challenge is your very last option and one you want to avoid at all costs.
Avoiding EEOC investigations
Your best defense is a good offense. In addition to creating a speak-up culture, train all your managers on signs of discrimination. If managers can intervene quickly before any issue progresses, they will save the company from an expensive lawsuit. This also helps managers build trust and mutual respect with their employees.
But remember this. If a complaint is filed, take it seriously. To avoid escalation, handle complaints thoughtfully, promptly, and decisively. If an employee comes forward with a complaint, don’t brush it under the rug or assume they’re reporting in bad faith. Instead, follow up and investigate ASAP.
Nipping discrimination in the bud (or avoiding it altogether), protects your organization both financially and reputationally, plus makes employees feel safe and welcome in the workplace. It also keeps the EEOC from launching a distracting, lengthy, and potentially damaging investigation against your organization.