As momentum builds across the nation to end anti-discriminatory practices in the workplace including closing the gender wage gap, many companies may experience some anxious moments if they receive notice that a Charge of Discrimination has been filed with the Equal Employment Opportunity Commission (EEOC).
Employees or former employees who feel that they have been discriminated against in the workplace are usually the reason that charges of discrimination are filed. According to the EEOC, charges of discrimination may be filed for several reasons: race, color, religion, nation of origin, disability, genetic information, age (40 or older), or gender. Gender can be further broken down to gender identity, sexual orientation, and pregnancy. All of the laws enforced by EEOC, except for the Equal Pay Act, require individuals to file a Charge of Discrimination before filing a job discrimination lawsuit against their employer.
So what happens after that notice is received by your company? Often an attempt at mediation. If voluntary mediation doesn’t solve the problem, then an investigation may be opened. If the investigation finds there has been a violation, the case can either be settled or the EEOC may file a lawsuit against your company. If the EEOC decides not to pursue litigation, the person who filed the charge is provided a Notice of Right To Sue. That also occurs if the investigation finds that there has been no violation of the law. Providing an employee or a former employee with a Notice of Right To Sue grants them the right to pursue litigation against your company and the potential for monetary damage awards.
How to prepare for EEOC charges being made against your company?
First, do your research to understand the process. Helpful information can be found at the EEOC website that outlines the process for individuals to file a Claim of Discrimination, including deadlines.
Second, notify the appropriate people within your company that a charge has been filed, including members of your executive team.
Third, be timely. By law, you are allowed to request a two-week extension for responding to the EEOC charge. It’s best to request that immediately as you will ultimately need more time to respond effectively. If, however, you need an extension, do so in a timely fashion. In submitting the request, the EEOC asks that you explain why an extension is necessary, and specify the amount of additional time needed to reply. Assume that you will not be provided the extension until you hear officially from the EEOC that the extension is granted.
Fourth, focus on responding to the charge. Review the charge. Verify if the employee making the charge is currently with the company or a former employee. Analyze the employee’s history and, if applicable, the employee’s resignation or notice of dismissal. Conduct a thorough investigation of all employees related to the charge, including the supervisor(s) and employee(s) involved in the alleged discrimination. Try to look for any patterns that might indicate there is a broader discrimination issue within the company, which is something that the EEOC may do. This will require a review of all personnel files, supervisory files and HR data. You will be aided greatly if this information is already digitized, easily accessible or organized for ready analytics. This type of information can easily be accessed if your organization has recently undergone a pay equity audit.
Finally, keep in mind that if an employee files a charge, any improper actions that follow while your investigation is being conducted can add onto the offenses with charges of retaliation. Your investigation must be both strategic and focused on understanding if the company has complied with the law. That will help you chart a course forward.
The EEOC has outlined the process of how companies should respond to a charge:
Submit a statement of position. This is the organization’s opportunity to tell its side of the story. A resource guide on Effective Position Statements is available.
Respond to a Request for Information (RFI). The RFI may ask the organization to submit personnel policies, the charging employee’s personnel files, the personnel files of other individuals and other relevant information. Provide complete and timely responses.
Permit an on-site visit if requested. However, be prepared for the on-site visit, including an understanding of the scope of the on-site audit.
Provide contact information for or have employees available for witness interviews if requested. A representative of the organization may be present during interviews with management personnel, but the EEOC investigator is allowed to conduct interviews of non-management level employees without the presence or permission of the organization.
For a complete rundown of the process, click this link.
Having your companies HR data, including personnel and supervisory files, digitized and readily available will make it easier to gather the information you will need for an effective and timely response. The time to review your HR data and storage retrieval systems is well before an EEOC charge is made. A proactive pay equity audit could help aggregate your information as well as provide you confidence in your pay practices and data.
Learn how a pay equity audit has affected other organizations in a report by Harvard Business Review Analytic Services, done in association with Trusaic by clicking here.