Even if you keep your employees from harassing co-workers and never base an employment decision on an employee’s race, gender or other protected characteristic, the Equal Employment Opportunity Commission (EEOC) may still not be satisfied. The following are tips for keeping the EEOC happy with your company’s employment practices.
- Be cognizant of the variety of laws that the EEOC is responsible for enforcing. Most employers know that the EEOC enforces laws prohibiting discrimination and harassment based on race, color, national origin, gender, religion, age and disability. The EEOC also enforces the Pregnancy Discrimination Act, the Equal Pay Act of 1963 and the Genetic Nondiscrimination in Employment Act, prohibiting discrimination based on genetic information, including a family history of certain illnesses. Make sure your EEO and anti-harassment policies cover these protected traits. Be aware that the EEOC has a special initiative, called E-Race, that specifically focuses on race and color discrimination. The EEOC’s E-Race objectives focus on identifying barriers and issues that contribute to race and color discrimination and strategies to improve the processing of administrative charges and litigation of race and color discrimination claims. The EEOC is particularly focused on systems and practices that have a class wide discriminatory effect based on race or color.
- Get familiar with the EEOC regulations and guidance. The EEOC has regulations and interpretive guidance on the laws that it enforces. Although these do not have the force of law and courts sometimes find that the EEOC goes too far, it is wise to check out the regulations and guidance before taking action on a thorny employment issue that touches on one of the laws that the EEOC enforces. When responding to a charge of discrimination, citing the EEOC’s own interpretations or its enforcement manual can be a plus.
- Make sure neutral policies that could screen out employees with protected characteristics are no broader than necessary to protect your company’s legitimate interests. Policies that appear to apply to all employees equally can still get your company into hot water if they disproportionately affect employees with protected characteristics. Like E-Race, the EEOC has a special systematic initiative that focuses on practices with class wide and systematic implications.
- Pay special attention to policies and practices based on criminal history. The EEOC recently issued enforcement guidance disfavoring blanket policies prohibiting the hiring of employees with criminal convictions. To avoid trouble with the EEOC, do not prohibit the employment of persons with criminal convictions across the board. Instead, screening out applicants and employees with criminal convictions must be based on how the conviction is related to the essential functions of the position at issue. Redraft applicable policies to require this more narrow analysis and train decision-makers at your company to make this determination. Keep information about criminal records confidential so that it is disclosed only on a need to know basis. The EEOC also is part of the U.S. Attorney General’s Reentry Council designed to assist persons released from prisons and jails in returning to their communities and becoming productive members of society. Therefore, expect to see increased focus by the EEOC on barriers placed by employers to achievement of these goals.
- Train management employees regarding nondiscrimination and harassment policies and avoidance, and discipline them when they do not comply. Supervisors and management employees are your company’s front line. Not only are they likely to be first on the scene when an issue of harassment or discrimination occurs, their misconduct can be deemed an act by the company. Make sure they understand how to handle an instance of discrimination or harassment and to avoid conduct that could be construed as discriminatory. Failure to comply should be reflected in performance reviews and discipline.
- If a charge of discrimination is brought against your company, get the facts straight before responding. Sometimes a quick response to the EEOC is tempting. Avoid the temptation. Take the time to interview relevant employees, review documentation and analyze how those facts relate to the EEOC’s interpretation of its laws. Include relevant documentation with the response. Performance reviews, resumes, job descriptions, warnings and customer complaints add credibility to your company’s assertion that it complied with the law, as can efforts to engage in reasonable accommodations and other documentation showing that the employment decision was based on legitimate factors such as performance, misconduct, and job qualifications…
- Do not ignore the EEOC’s requests for documents and interviews. The law gives the EEOC the right to get documents from your company and interview witnesses. Often, providing the EEOC relevant documents with the position statement can help prevent the agency from coming back for more. If the EEOC seeks documents and interviews, however, be responsive and respectful. By the same token, do not hesitate to object to requests that seem overbroad. Not all requests will be narrowly-tailored or reasonable. Remember also that employees have the right to have counsel present during EEOC interviews, and you can have your company attorney present during interviews with management.