The U.S. Equal Employment Opportunity Commission (the “EEOC”) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information.[i] It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered. These laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits. The EEOC has the authority to investigate charges of discrimination against employers who are covered by the law.
Faced with an EEOC investigation, the burden on a contractor employer can be daunting. The EEOC has the full power of the federal government behind it, and moves slowly and deliberately, which can cause frustration and expense to the employer.
Recently, the EEOC has implemented new nationwide procedures that provide for release of employer position statements and non-confidential attachments to a charging employee (person making the complaint), or his or her representative, upon request during the investigation of the charge of discrimination.
During an investigation of a charge by the EEOC, the EEOC may request that the employer submit a position statement that documents the employer’s position. The EEOC’s resource guide for employers, the Effective Position Statements, advises employers to focus their position statements on facts relevant to the charge of discrimination, and to identify the specific documents and evidence supporting the employer’s position. An employer generally has 30 days to gather the information requested and to submit its position statement and attachments to the EEOC. The EEOC may then redact confidential information as necessary prior to releasing the information to the charging employee or the employee’s representative.
The EEOC will provide the employer’s position statement and the non-confidential attachments to the charging employee upon request and provide him/her with an opportunity to respond within 20 days. The employee’s response will not be provided to the employer during the investigation. The EEOC reports that its new procedures are intended to provide for a consistent approach to be followed in all EEOC offices. For more information, read Questions and Answers for Charging Parties and Questions and Answers for Respondents.
Comment: When faced with an EEOC investigation, it is generally advisable to conduct an immediate investigation, preferably by an outside third party. A prompt investigation will ensure that recollections are memorialized and documents are marshalled while events are fresh. It is also advisable to engage the services of legal counsel familiar with this area of the law who have been through the process and know the procedures.
[i] This post comes to us by way of the American Subcontractors Association, The Contractor’s Compass, June 2016.