The Importance of a Quality Anti-Discrimination Employment Policy and Training Program
Employment complaints based on discrimination are one of the biggest headaches any employer can have. In the modern business environment, unfortunately, they are not all that uncommon. The best defense is a good offense.
Perhaps the single most important way to avoid an EEOC complaint is to have an updated and well- designed EEO and workplace harassment policy along with a regular training program that your company’s leadership takes seriously. If your company does not have one, it should. If your company does have one, make sure it complies with current EEO laws. A good program can help your company avoid a discrimination complaint, and it will certainly help your company defend against one.
What Does a Good Anti-Discrimination Program Look Like?
Here is a brief description of the elements of a good anti-discrimination program.
Your anti-discrimination policies and programs should be in writing. They should be kept updated and readily available to all employees. Publishing them on the company website and in any employee manuals and handbooks is a great way to accomplish that. Make sure to post the required EEO poster in your office.
Provide training for all employees on the EEO laws applicable to your business. In that training, explain your workplace standards of conduct that support your anti-discrimination policies. Contact the EEOC for assistance. The Commission provides resources to help businesses develop a good program and even provides training for you at no cost.
Your recordkeeping should comply with the EEOC and Labor Department rules that apply to your company. If you are a small business that is not subject to EEOC enforcement authority, you and your company are nonetheless subject to anti-discrimination statutes.
Be sure that you maintain complete and accurate personnel records on your employees. You must document employee performance for each employee. Each file should contain written employee performance evaluations, time and attendance records, records of merit-based bonuses and awards, disciplinary actions, and any other information documenting employee performance.
If you are subject to EEOC or Labor Department reporting requirements, your compliance with those obligations will be helpful if you have to defend against an EEOC complaint. Timely collection and reporting (if applicable to your business) of workplace statistical information about the make-up of the workforce will tend to show you take the EEO laws seriously.
Your company needs to keep up with developments in the law in this area. You can access the EEOC’s resources for employers for assistance. You can also consult an attorney experienced in this area of law to review your policies and practices and give you guidance.
What Should You Do If An EEO Complaint Is Filed Against Your Company?
1. Take it seriously. If your company loses, the company may have to place the complainant in as close to the same position as he or she would have been if the discrimination had never occurred. This means your company could have to pay:
- Back pay and benefits.
- Victim’s attorney’s fees, expert witness fees and court costs.
- Certain out-of-pocket expenses caused by the discrimination, such as costs associated with a search for another job, any medical expenses, and emotional injury.
- Punitive damages up to $300,000.
- Expenses of bringing the company policies into compliance.
You may also have to provide a job or promotion to the complainant.
2. Comply with all recordkeeping requirements. The EEOC maintains a handy summary of selected requirements that is available to the public. You also need to comply with all other state and federal recordkeeping requirements concerning your personnel. If you have complied with the recordkeeping requirements, you will be able to document a good defense.
3. Hire an attorney experienced in EEOC matters. Experienced counsel can help make sure your company has a good program in place, help your company avoid the common mistakes described below, and assist you in defending against an EEOC complaint.
What Not to Do?
Do not ignore the EEOC complaint. Once a complaint is filed, the EEOC sends a notice to the employer. As the employer, you cannot simply ignore it. You should consult with experienced counsel to determine whether your company is subject to the EEO laws and rules at issue. If so, counsel can assist you throughout the process. You need to comply with the rules carefully. You may opt to engage in early mediation to resolve the matter.
Do not assert general denials. You will need to present your position statement and an explanation of a legitimate business reason for the action that forms the basis of the complaint. Be specific in your position statement. Too many employers make general denials and do not provide enough facts to support their defense. Before you submit a position statement, make an attempt to get the facts. Conduct a real investigation and base your position statement on the results of it.
Do not delay. The EEOC will submit a request for information seeking the company’s personnel policies, personnel files, and other documentation. It may also seek contact information for employees who may be sources of information about the facts asserted in the complaint. You should be prepared to comply with this request timely. This is where your track record of good recordkeeping and updated policies will help your company defend itself. If the EEOC requests a site visit, cooperate.
Do not ignore non-compliance problems. Take steps to rectify problems or non-compliance to avoid another complaint. Failure to rectify the situation will almost certainly lead to other employee complaints.
Do not retaliate. Regardless of the merits of the employee’s complaint, do not retaliate against the employee for filing the EEOC complaint in any way.
Do not try to handle an EEOC complaint without counsel. Consult an expert attorney as soon as possible.