Avoiding EEO Claims in an Environment of Heightened Enforcement

  

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It seems that every recent Equal Employment Opportunity (EEO) related conference I have attended has played the same message: EEO enforcement in the workplace has increased.  So, if you think that you have noticed more activity by federal and state investigators in the investigation of charges of discrimination, an increase in OFCCP audits or more EEOC litigation and findings of probable cause from the MCAD - you’re not the only one.    

Given this increased enforcement activity, it is a good idea to think about whether we are complying with all relevant statutes.  Consider the following areas where investing time may make a difference in avoiding EEO issues and claims:

• Creating and/or reviewing and updating EEO policies, procedures and practices. 

A General EEO Policy

In Massachusetts, the list of protected classes has grown and is expected to continue to grow in the near future.  Currently, many companies include the following protected classes in their EEO related policies: race, color, religion or religious creed, national origin, ancestry, age, sex/gender (including pregnancy), gender identity/expression, sexual orientation, genetic traits, handicap or disability, veteran status and (just in case you are asleep when another one is added), “and any category  protected by law.”  Does your list need updating?  If so, consider updating sooner than later.

      A Solid Anti-Discrimination Policy and Procedure

Ensuring you have a solid Anti-Discrimination Policy and Procedure is critical.  A strong Anti-Discrimination Policy and Procedure should contain at minimum the following - and the EEOC says so in its Guidance on Vicarious Liability - (1) a clear explanation of prohibited conduct; (2) assurance that employees who make complaints of discrimination or harassment or provide information related to such complaints will be protected against retaliation; (3) a clearly described complaint process with accessible and multiple avenues of complaint; (4)  assurance that the employer will protect the confidentiality of complaints to the extent possible; (5) a complaint process that provides for a prompt, thorough and impartial investigation, and (6) assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.  It is recommended that these policies include a prohibition against discriminatory harassment and are best when they cover discrimination relating to all the protected classes -- not just a prohibition against sexual harassment.  

Consider a Reasonable Accommodation Policy and Procedure and/or a Religious Accommodation Policy and Procedure

Neither of these policies is required but certainly can be helpful.  If well drafted, these policies and procedures can provide employees and management an idea of how to handle very tricky requirements.  You may also consider creating forms that prompt and memorialize communications around requested accommodations and decisions made about accommodation requests.

Take a look at your recruiting, hiring, promotion and pay policies and practices. 

I’ve noticed more and more class litigation under EEO related laws - many pattern and practice cases, particularly in the area of pay and promotions.  Although there is no way to insulate an organization from suit, these cases have made me wonder if they could have been prevented by a more critical eye in these areas.  Remember the judgment last year against Novartis?  An internal review of policies, practices and procedures is much cheaper than a $250,000 punitive damage award, not to mention all the not so great publicity.

• Assess your EEO function

Do you have the properly trained individuals handling inquiries about reasonable accommodation?  Addressing and investigating complaints and concerns about workplace discrimination?  Remember that training and policies can be a great defense to a variety of EEO claims and failure to train management employees has resulted in punitive damages in some cases. 

• Provide Meaningful EEO Training

Management decisions or conduct that violates EEO laws -- even if unintentional -- can present serious risks for any business.  By the same token, managers are not born with inherent EEO knowledge.  Indeed, in many cases, managers and supervisors are promoted from within from the hourly workforce and as such, may need basic leadership and supervisory education.  Some important training topics depending on your workplace’s specific issues include:  general principles around diversity and inclusion; the overlap between the ADA/FMLA; language and communication in the workplace; training to prevent harassment and discrimination, and if necessary, an EEO Basics workshop that assumes no knowledge but puts folks in realistic situations and teaches/coaches them on how to react consistent with company policy and applicable law.

I don’t want to sound like Chicken Little because the sky is not falling.  However, providing education and training to your management team is a crucial and strategic investment that can be priceless.  HRW attorneys regularly lead in-house seminars and facilitate discussions on these key topics.  Let us know if we can help begin or revitalize your initiatives.