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Increase the=20
Chance of=20
Successfully
Defending Your=20
Organization |
It's an =
employer's nightmare:=20
You are notified by the Equal Employment =
Opportunity=20
Commission (EEOC) that a complaint has been =
lodged=20
against the company.
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More Employers =
Are Hearing=20
from the EEOC
Charges of=20
discrimination, harassment and retaliation =
have=20
gone up in recent years, as indicated by =
these=20
EEOC statistics:
|
Charge |
2006 |
2007 |
2008 |
| Race |
27,238 |
30,510 |
33,937 |
| Sex |
23,247 |
24,826 |
28,372 |
| National =
Origin |
=20
8,327 |
=20
9,396 |
10,601 |
| Religion |
=20
2,541 |
=20
2,880 |
3,273 |
| Age |
16,548 |
19,103 |
24,582 |
| Retaliation (all=20
laws) |
22,555 |
26,663 |
32,690 |
| Disability |
15,575 |
17,734 |
19,453 |
| Pregnancy |
=20
4,901 |
=20
5,587 |
=20
=
6,285 | |
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The U.S. Labor=20
Department is increasing=20
enforcement of wage and hour rules. Beware =
of the=20
ways employers can run afoul of the law =
including=20
failure =
to:
- Calculate overtime pay=20
correctly.=20
- Correctly =
classify=20
exempt and non-exempt=20
employees.=20
- Pay for certain on-call=20
time.
=
- Pay for all time worked, =
such as=20
required attendance at a meeting outside =
of=20
normal work hours.
=20
- Keep required=20
=
records.
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Recent=20
EEOC Cases
National =
Origin=20
- The EEOC =
filed suit=20
against a Hilton hotel in a Chicago suburb =
charging the company subjected Hispanic =
employees=20
to a hostile work environment. The =
lawsuit, filed=20
in September, alleges the executive chef =
openly=20
referred to the employees with derogatory=20
terms.
=
Retaliation=20
- A building services company =
violated=20
federal law when it fired an employee =
after he=20
complained about race and sex =
discrimination,=20
according to the EEOC. A lawsuit was filed =
October=20
9 against Able Engineering Services, which =
provided services to a Bethesda, Maryland, =
shopping mall where the employee=20
worked.
Age=20
- The EEOC filed a class lawsuit =
in=20
September against the Ruby Tuesday =
restaurant=20
chain on behalf of applicants who were =
denied jobs=20
because they were too old. The restaurants =
at=20
issue were located in Pennsylvania and=20
Ohio.
=
Disability=20
- In September, Sears, Roebuck =
and=20
Company consented to pay a record $6.2 =
million to=20
resolve a class lawsuit that alleged the =
retailer=20
discriminated against disabled employees. =
The case=20
arose after a service technician was =
injured on=20
the job, took workers' compensation leave =
and=20
attempted unsuccessfully to return to =
work. During=20
pre-trial discovery, the EEOC found =
hundreds of=20
other former Sears employees who had faced =
the=20
same=20
=
treatment. |
More and more =
employers are=20
facing this situation, according to EEOC =
statistics. The=20
number of individuals filing discrimination, =
harassment=20
and retaliation claims with the federal=20
government has been rising in recent years. =
(See=20
right-hand box for the statistics.)
Some employment =
lawyers=20
predict claims will increase even more this =
year, and in=20
the future, since many laid off employees file =
charges=20
and the Obama administration has made =
discrimination=20
enforcement a priority.
What should you =
do if your=20
company receives an EEOC notice? Remain calm. It =
does=20
not mean the federal government is filing a =
lawsuit.=20
Rather, an individual has accused your company =
of=20
violating the law and the EEOC is investigating =
whether=20
there is reasonable cause to believe the =
charges. If you=20
respond to the charges honestly and =
expeditiously, you=20
could avoid a costly=20
discrimination lawsuit down the road. At the =
worst, you=20
will be able to lay the groundwork for a solid=20
defense.
Frequently, the =
EEOC=20
notification will contain just a few short =
paragraphs=20
relating to the alleged incident. Don't be =
misled by the=20
brevity of the initial statement. Spend time =
with your=20
attorney developing a comprehensive response to =
the=20
complaint. Here are seven steps that can improve =
the=20
likelihood of success.
1. Provide=20
all the facts you have at your =
disposal. In=20
responding, be as detailed as possible in =
presenting the circumstances surrounding the=20
allegation. However, don't go into rambling=20
explanations.
Also, =
explain the=20
reasons why the company acted in the manner in =
which=20
it did. The best way to thwart subsequent =
legislation=20
is to convince the EEOC investigators that =
there were=20
valid and justifiable business reasons for =
your=20
actions.
2. Establish=20
the setting. It is important to share =
details=20
about your business that are not commonly =
known. For=20
example, it may be critical for your operation =
to have=20
a customer service desk fully staffed at all =
times. If=20
you fire or discipline a customer service =
worker who=20
is habitually tardy or regularly fails to show =
up=20
without a good excuse, demonstrate how=20
this affects your business. Don't make=20
assumptions that everyone knows the exact =
nature of=20
your business.
3. Document=20
your position. When possible, support =
your=20
version of the events through written records. =
Begin=20
with sections of the company manual that could =
have a=20
bearing on the allegations. Use documentation =
such as=20
sales reports, attendance records and =
personnel files=20
to prove your point. Print out relevant e-mail =
messages that indicate that your concerns or =
actions=20
were justified. Make sure that all =
relevant=20
records are preserved -- especially those that =
are=20
stored electronically. Ensure that the =
accuracy of=20
statements are verified by other employees who =
do not=20
have a vested interest in the=20
outcome. =20
4. Rely on=20
precedents. You may be able to =
convince the=20
EEOC that you did not illegally discriminate =
against=20
an employee if you can show that you =
consistently used=20
the same approach in a nondiscriminatory =
manner. For=20
instance, if you terminate a female employee =
for=20
certain acts of misconduct and the employee =
claims=20
sexual discrimination, document other =
instances where=20
male employees lost their jobs for exhibiting =
the same=20
or similar behavior.
5. Use common=20
sense. Information pertaining to the=20
complaint should strictly be handled on a=20
"need-to-know basis," especially if the =
employee=20
involved in the charge still works for the =
company. Be=20
polite and cooperative when questioned by the =
EEOC=20
investigators and instruct other staff members =
to do=20
the same.
6. Check your=20
company's insurance policies. Many =
liability=20
policies cover claims relating to an =
employer's=20
discriminatory practices. Generally, such a =
policy=20
requires you to contact the insurer right away =
when a=20
claim arises. If you don't act swiftly, your =
coverage=20
for the claim may be denied -- including all =
legal=20
damages relating to the initial=20
claim.
7. Seek=20
expert legal guidance. The EEOC =
notification=20
may be the first step in a long string of =
legal=20
proceedings your company will face. =
Therefore,=20
you should protect your company's best =
interests from=20
the outset and obtain legal assistance in =
preparing=20
your company's response. Your attorney can =
interview=20
witnesses and investigate mediation. Ask your =
attorney=20
how to proceed if federal investigators come =
to your=20
workplace asking to speak with staff members. =
Finally,=20
coordinate efforts with your legal and human =
resources=20
advisers to put on the best defense you=20
can.
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