TIPS FOR RESPONDING TO EEOC COMPLAINTS PRESENTED BY: RICHARD D. ALANIZ

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1 TIPS FOR RESPONDING TO EEOC COMPLAINTS PRESENTED BY: RICHARD D. ALANIZ

2 ERA OF ACTIVE ENFORCEMENT Over the last several years, government agencies that regulate the workplace have been in a mode of aggressive enforcement. Equal Employment Opportunity Commission Occupational Safety and Health Administration National Labor Relations Board The Office of Federal Contract Compliance Programs Wage and Hour Division of the Department of Labor This presentation will focus of the EEOC. Most of the tips and themes we ll talk about are transferable to other federal and state agencies as well.

3 AGENDA Laws and Regulations Enforced by the EEOC Working with Protected Classes Walk-Through of an EEOC Charge Hiring Scenario Termination Scenario Tips for Responding to EEOC Complaints

4 LAWS AND REGULATIONS ENFORCED BY THE EEOC

5 WHAT IS THE EEOC? United States Equal Employment Opportunity Commission = EEOC The federal agency responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or employee because of that person s: Race Color Religion Sex National origin Age Disability Genetic information

6 WHAT LAWS DOES THE EEOC ENFORCE? Title VII of the Civil Rights Act of 1964: Illegal to discriminate against someone based on race, color, religion, national origin, or sex. Also illegal to retaliate. Pregnancy Discrimination Act: Illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Also illegal to retaliate. Equal Pay Act Illegal to pay different wages to men and women if they perform equal work in the same workplace. Also illegal to retaliate.

7 WHAT LAWS DOES THE EEOC ENFORCE? Age Discrimination in Employment Act: Illegal to discriminate against someone based on age (over the age of 40). Also illegal to retaliate. Americans with Disabilities Act: Illegal to discriminate against a qualified person with a disability. Requires reasonable accommodation. Also illegal to retaliate. The Genetic Information Nondiscrimination Act of 2008: Illegal to discriminate based on genetic information (includes family medical history). Also illegal to retaliate.

8 COVERAGE The employer must have at least 15 employees. The applicant or employee must file a charge of discrimination within 300 days of the action being complained about. At the conclusion of the investigation, the employee will most often be issued a Right to Sue letter. Given the Right to Sue letter even if the Agency finds no cause to believe that a violation occurred. Generally the employee has 90 days to file suit. Rarely will the EEOC file suit on behalf of a charging party but in some cases it happens. In rare cases, the EEOC can proceed on its own without an employee charge Commissioner s Charge rare and usually involves a large number of employees.

9 THE INVESTIGATION PROCESS Employees must file a complaint with the EEOC before they can pursue their claims in court. The EEOC is tasked with investigating the complaints filed with it. The EEOC will often seek mediation even before it investigates these cases. The Agency will ask you for a statement of position and a list of documents to produce. The Agency may ask to interview employees or supervisors. The Agency may subpoena documents. After a finding, the EEOC is supposed to attempt to conciliate and resolve the matter. The EEOC may either pursue a case on its own (unusual) or issue a Right to Sue Letter

10 RECENT TRENDS In December 2012, the EEOC released its Strategic Enforcement Plan. The Agency highlighted its primary objective eliminating systemic discrimination. I.e., turning individual discrimination cases into company-wide or nation-wide discrimination suits. The Agency s behavior has shown this trend: The number of charges have grown steadily over the last ten years. Document requests have become extremely onerous and overreaching. Conciliation likely to fail in most cases because of EEOC demands.

11 RECENT TRENDS Age, disability, and retaliation claims have been the fastest growing for the last few years this will continue. Oldest workforce in history. ADAAA (2008) expanded the scope of disability claims Over 25% of all claims filed are disability claims. Courts are following Congress directions to broaden what constitutes a disability. Retaliation claims are filed almost as a matter of course. More than half of all claims include a retaliation claim.

12 CHARGES FILED IN 2012 GINA Equal Pay Act Disability Age Retaliation - Title VII Retaliation - All Statutes Color Religion National Origin Sex Race 0 5,000 10,000 15,000 20,000 25,000 30,000 35,000 40,000

13 EXAMPLE OF EEOC OVER-REACH In August 2013, a federal district judge ordered the EEOC to pay $4.7 million in costs and attorneys fees. The EEOC had attempted to pursue a systemic (class) sexual harassment case on behalf of 270 people. First, the Agency used sweeping allegations to attempt to force a settlement. After that failed, the Agency brought suit on behalf of an undisclosed number of people. During discovery all but one of the claims were dropped because there was no evidence of wrongdoing. The court found that the Agency had not adequately investigated the complaints and hadn t attempted to engage in the conciliatory process.

14 WORKING WITH PROTECTED CLASSES

15 WHAT IS A PROTECTED CLASS? A protected class is any group afforded special legal rights or protections by law. What are the most common protected class? Race/Color National Origin Age Military Status Religion Marital Status Genetic Characteristics Gender Disability Pregnancy Status Sexual Orientation

16 RESPONDING TO EMPLOYEE COMPLAINTS What are the forms of employee complaints? A complaint can come in a variety of ways Verbal Written Anonymous From a third party Rumors Graffiti Should you take any of these less seriously than others? NO!

17 INVESTIGATION OF COMPLAINTS Involve HR or designate a qualified person to investigate. Interview the complainant and assure them of confidentiality to the extent possible. Draft written documentation of the complaint. Interview the alleged harasser and warn against retaliation. Interview employee witnesses. Consider what to do pending the completion of the investigation.

18 INVESTIGATION OF COMPLAINTS Review parties personnel files for pertinent information. Make a determination on whether the harassment occurred. Make a prompt determination on appropriate corrective action. Inform parties of the outcome. Document the outcome and corrective action. Follow-up.

19 COUNSELING CHECKLIST Is there a written policy that explains the rule the employee violated? Do you have documentation to support the employee s violation? Have you conducted an investigation to determine all the circumstances of the violation? Have other employees who previously engaged in the same conduct received the same discipline? Do you have any witnesses who will stand up and confirm the rule violation? Are you prepared to justify and successfully defend any claim made by the employee about the counseling?

20 WALK-THROUGH OF AN EEOC CHARGE

21 Hiring Scenario

22 HIRING SCENARIO

23 DEFENDING YOUR HIRING DECISION Failure to hire charges: Always be prepared to submit your EEO policy. Be sure it is posted in the workplace. Information requests will also include any hiring policy. If there is no written policy, be prepared to describe the hiring process. Be prepared to submit: Job vacancy announcement Employment application Resume of charging party Any other documents that address the qualifications for the job

24 THE INFORMATION REQUEST

25 THE INFORMATION REQUEST

26 THE INFORMATION REQUEST

27 RESPONDING TO THE REQUEST The Request is onerous. Interview notes are critical to any hiring or promotion claim. Do such notes exist? Are they clear as to why the person was not selected? Do they include any inappropriate questions or information? Can you explain easily any problem comments or content?

28 DEALING WITH DISABILITY CLAIMS When hiring claims involve disability allegations (over a quarter of all claims brought do): Do you have a policy addressing disabilities and/or reasonable accommodations? Do you have a clear job description that sets out the essential job functions? Do the interview notes support a decision not to hire based upon lack of qualifications and not the person s disabled status? Do the interview notes have any comments that are problematic?

29 Termination Scenario

30 HIRING SCENARIO

31 DEFENDING YOUR TERMINATION DECISION Wrongful termination charges: Always be prepared to submit your EEO policy. Be sure it is posted in the workplace. Counseling / discipline forms Company policies No Harassment Policy is vitally important Investigation Notes Examples of others who have been counseled for similar acts

32 THE INFORMATION REQUEST

33 THE INFORMATION REQUEST

34 RESPONDING TO THE REQUEST Again, the Request is onerous. Counseling notes and company policies are critical to wrongful termination claims. Does the counseling adequately explain the reason for the action? Is there a company policy that supports the counseling? If your company uses progressive discipline, does the counseling form support this and eventual termination? Are each of the steps in the progressive discipline for this individual supported by documentation and the policy violated? Remember the counseling checklist we covered earlier.

35 TIPS FOR RESPONDING TO EEOC COMPLAINTS

36 MANAGING THE INFORMATION REQUEST Always remember that the EEOC is NOT entitled to everything it asks for. The EEOC especially recently routinely asks for more information than is needed to address the specific claim. Review carefully the request and consult with counsel. You can force the EEOC to go get a subpoena. And you can challenge that subpoena in federal court. Beware of short deadlines need to respond to the EEOC s subpoena within 5 days!!

37 PROVIDE THE AGENCY WITH THE ESSENTIALS Don t let the Agency strong arm you or turn a single charge into a systemic case. But you do have to give the EEOC some information: EEO policy & No harassment policy Reasonable accommodation policy Interview notes / counseling forms The Agency is looking for evidence that you have appropriate policies and that you consistently applied them. Provide this early and clearly, and you will have less trouble.

38 HELPFUL TIPS: if you do anything, do these Make sure the proper personnel know that any legal documents received deserve immediate attention. Immediately contact Human Resources and counsel. Immediately instruct any witnesses and managers/supervisors involved not to destroy any documents related to the claim. Review carefully the information the EEOC is requesting and consult with counsel. Have appropriate documentation on the front-end i.e., properly document any significant action affecting an application or employee. Remember that states have investigatory agencies as well their requests will be similar and the response should be the same.

39 THANK YOU FOR YOUR TIME AND ATTENTION Any Questions?? RICK ALANIZ

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