Published April 2009
According to the U.S. Equal Employment Opportunity Commission (EEOC), during the 2008 fiscal year, the number of workplace discrimination charge filings jumped 15 percent compared to the prior year resulting in 95,402 filings. The EEOC enforces discriminatory employment laws, such as discrimination based on age, race, gender, sexual orientation, and disability. While the most frequently filed charges remain involved with race, sex and retaliation allegations, the biggest increases dealt with age and retaliation charges. No matter how petty a complaint seems, every employer should take every employee complaint seriously.
An employee’s first step in alleging workplace discrimination is filing a claim with the EEOC. How your company responds to the employee’s claim is crucial. If you are presented with a claim, the following is a simple guideline of what the EEOC wants from you:
- Cooperation. Acknowledge receipt of the claim, and pose any questions with the investigator about the process. Be sure to meet any EEOC deadline as best as you can. If you foresee possible delays, then be sure to let the investigator know and explain the situation.
- Information. It all starts with the evidence you gain through an investigation of the charge, and pros and cons of developing formal report do exist. On the positive side, a good report represents an objective record of the evidence gathered, the determination of events, and the recommendations and actions taken as proof of how your company took steps to address the situation. However, the same report may backfire against you if the investigation was not conducted properly or the resulting decisions and actions were inappropriate. To help minimize your risks, it is in your best interest to work with legal counsel or, at least, an HR professional to discuss, let alone help in drafting your report.
- Communication. Once you have finished your investigation, inform the EEOC of the outcome in a “position statement.” The position statement is your written explanation of non-discriminatory reasons for having taken adverse employment action(s) about which the “charging party” – the prospective, current, or former employee – filed the complaint. Some items in the statement would include:
- A concise position. For example, you may state that “In response to the charge of [type of] discrimination, [Company Name] denies the allegation. As explained in detail below, [Charging Party] was discharged due to [reason].”
- The company’s EEO policies. Demonstrate to the EEOC that the company takes equal employment opportunity seriously and will not tolerate employment discrimination or harassment. You may refer to the specific policies and even quote relevant language from the Employee Handbook.
- Evidence of non-discrimination. While important to directly address the allegation(s), also provide any evidence of non-discrimination. For example, in a sex discrimination claim, what are the demographics of the company’s workforce? How many women and men are of the same job position compared to the employee in question? And how have they all been treated in a consistent and non-discriminatory manner?
However, no matter how bullet-proof your employment policies and practices may be, an employment claim may still be handed to you. At the same time, conducting a thorough investigation for any internal employee complaint can mean the difference between preventing an EEOC claim and spending potentially hundreds of thousands defending it.