We can agree that a company running a business is difficult enough without a bad performing employee making false accusations against the company to the Equal Employment Opportunity Commission (EEOC). Under federal EEOC laws, it is unlawful for an employer to discriminate against job applicants and employees on the basis of race, ethnicity, gender, religion, etc. When your company received a EEOC claim, the company should take the charge serious. Our California Attorney EEOC Defense Lawyer for businesses and companies identified the nine common mistakes employers make in EEOC claims.
On this page, you will learn: 1) Nine common mistakes companies made when dealing with EEOC, and 2) Tips for how to handle an EEOC complaint.
9 Common Mistakes Employers Must Avoid When Dealing With the EEOC
Employers can often be negative towards the Equal Employment Opportunity Commission. Especially now they have taken an aggressive stance on background checks and pre-employment credit. However, as long as your company have a track record of treating employees with equality, the EEOC will give you the benefit of the doubt. As an employment attorney, here are the nine common mistakes we see employers make that will land them in trouble with the EEOC.
Employers Do Not Monitor EEO Compliance
While many employers will have EEO policies in place, they do not proactively monitor if they are being adhered to. Companies often have countless balls in the air, but it is important to ensure policies and processes are kept up to date and employees know how to make a complaint if they are discriminated against or witness discrimination. The following activity should be monitored and reviewed regularly:
- A process is in place for complaints
- A process is in place for investigating and handling complaints
- Management and supervisors are trained in employee relations
- The demographics of hiring and firing
- The demographics in certain departments or job positions to ensure there is no segregation by sex or race
- There is a policy for reasonable accommodation and managers are trained in how to handle a reasonable accommodation request
- EEO and harassment policies are up to date
It is also important to monitor legal actions against the company to spot any perception or morale issues. By showing you take reasonable steps to ensure EEO in your company, the EEOC will look favorably upon your company.
Employers Do Not Take Action
Employers rarely take appropriate or swift action when addressing discrimination issues. Mistakes will happen, but it is important to resolve the issue when it is brought to your attention, whether from an employee or from an EEOC complaint. By quickly resolving the matter, you can minimize the damages and bad press that a discrimination complaint can bring. If this is your normal practice, then the EEOC will look upon you favorably and give you the benefit of the doubt or the opportunity to fix an issue before they launch an investigation.
Employer Spoliation Fabrication or Destruction of Evidence and Documents.
Preparing for an EEOC investigation in terms of seeking legal representation and providing their employees with information about the charges and the investigation process is fair and legitimate. However, some employers engage in the immoral behavior of preparing by concealing evidence, lying, or threatening people who could be witnesses. Not only is this behavior immoral, but it could add further damages.
Employer Delay in Responding to EEOC
Many employers purposefully slow down the process by delaying their responses as a tactic rather than a result of a heavy workload. When EEOC charges are concerned, delaying the process is not a smart tactic at all. First , the EEOC will see right through your tactic, and you will no longer receive the benefit of the doubt on issues. Second, when the employee files a discrimination charge with the EEOC, the statute of limitations is frozen until the EEOC disposes of the case. The EEOC does not move quickly either, so the freeze allows employees time to file their own lawsuit if the EEOC recommends it. By delaying the process, you are just increasing the damages you must pay in benefits and backpay.
Employer Won’t Mediate
The EEOC has a quality mediation program that seeks to resolve issues without the need for lawsuits. Their mediators give employers and employees alike the benefit of the doubt, and they are often very savvy on uncovering the underlying issues. Mediation is not suitable in every case, but it is worth considering to save economic and reputation damages of a discrimination lawsuit.
Employer Retaliate Against Employees
From a moral perspective alone, this is deplorable behavior, but from a legal perspective, discriminating against an employee causes more issues for your company. Unfortunately, some companies do retaliate against employees who file a charge against their employers to protect their rights to an equal workplace.
Two broad categories of action are protected from retaliation under anti-discrimination laws.
- Participation – filing a charge, testifying in a discrimination case, or similar.
- Opposition – making an internal complaint about discrimination against co-workers or on your behalf.
Regardless of the strength of the discrimination claim, retaliation can still exist. In some cases, employees have lost their discrimination claim but won damages due to retaliation from their employer. It is also possible for an employee not of a protected class to become protected from retaliation because they have made a complaint about discrimination against a co-worker.
It is possible to terminate someone who handled a legitimate complaint in a bad way or made a bad-faith complaint. However, this is shaky ground, and you should rely heavily on the advice of your employment attorney to navigate this tricky situation.
Employers Don’t Expect to Litigate.
When the EEOC finds a violation of employee rights, they will either recommend the employee seek legal action or take the employer to court on the employee’s behalf. The EEOC rarely takes employers to court, but they will often do so in the following cases:
- When class action is necessary
- When the allegation is religious discrimination as many religious people will not file a lawsuit on their own behalf
- When the issue is one of the EEOC’s focus issues
Recently, the EEOC has been hiring more litigators to keep up with the increased number of lawsuits they have been filing. The litigators who work for the EEOC are extremely effective and hardworking.
Employers Underestimate the EEOC
Most employers and their lawyers underestimate the professionalism of the EEOC. They assume the EEOC are biased against employers and will not give them a fair chance. However, even though the EEOC investigators are pro-employee, they will be fair to both employers and employees and search for the truth.
Employers Don’t Communicate
When your company is under investigation by the EEOC, you and your lawyers need to stay in touch with the EEOC investigator. The burden is on the employer as the one under investigation to show they operated properly. Be proactive in your communication with the EEOC investigator and ensure they have access to any evidence they need to support your actions.
Tips for how to handle an EEOC complaint
A company running a business often has to focus on the bottom line: cash flow and profits. Putting ego over a company’s bottom line will likely cause the EEOC to slam the company by siding with an employee and award greater money to the employee.
- Be Pleasant. Do not be rude or difficult with the EEOC investigators. If you are pleasant, they will be as well. Even if you need to refuse a request, do so politely.
- Be the Good Guy. Don’t assume you have done something wrong if the EEOC is suing; it is possible to win an EEOC lawsuit. Often, the EEOC will jump upon a “hot cause” case and be a little harsher in their action.
- Be Cooperative. Anything you can do to make the investigator’s job easier will work in your favor. Clearly explain all relevant background information and provide any evidence that supports this so the investigator can easily see your view.
- Consult with an EEOC defense attorney. Always consult an employment lawyer when dealing with an EEOC charge. They will protect your interests in the case and be able to advise you on how to quickly rectify issues to reduce the damage. Without legal counsel, it is easy to accidentally turn small issues into large disasters.
- Don’t Make it Worse. If you fired someone with good cause, be truthful about your reasons. Many employers will argue job elimination, and the EEOC will often see right through it. If you fired someone for economic reasons and because they violated a policy, then say so. It will be much easier for you to defend.
- Be Complaint with EEOC Investigator. Do not assume the EEOC is building a case against you whenever it requests information. Consult legal counsel if you are unsure, but polite compliance will work in your favor. Most of the time, the EEOC may just need to check some facts before they throw out the charge.