How Employers Can Avoid Becoming an EEOC Statistic: Part 1

April 27, 2007 (Updated July 2009)

Excerpted from Vermont Employment Law Letter, written by attorneys at the law firm of Dinse, Knapp & McAndrew, P.C.

by Amy M. McLaughlin

In its year-end statistics, the Equal Employment Opportunity Commission (EEOC) reported that 75,768 discrimination charges were filed against private-sector employers in 2006. That was the first increase in charge filings in four years. By 2008, the total number of charges filed with the EEOC had jumped 25% to 95,402.

With workplace discrimination charges on the rise, now is the time for employers to evaluate the policies and procedures they have in place to combat discrimination. This two-part article will discuss ways employers can educate and train their workforce and suggest ways to handle internal discrimination complaints properly.

This week, we'll discuss the importance of creating a discrimination policy and training your employees and supervisors to avoid discrimination and harassment in the workplace.

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Educate employees and supervisors
As a first step, employers should create a clear policy explicitly prohibiting workplace discrimination and harassment. The policy should include a statement that such conduct won't be tolerated and will lead to disciplinary action up to and including dismissal.

In addition, the policy should state unequivocally that retaliation against an employee for making a discrimination or harassment complaint is itself considered a form of discrimination and likewise is prohibited and subject to disciplinary action.

The policy specifically should set forth the classes protected under state and federal laws (such as gender, race, religion, and national origin) since some employees may not be aware of the extent of the law's protection. For example, in some states, sexual orientation is a protected characteristic, as is HIV-positive status.

Furthermore, a specific section of the policy should be devoted to defining sexual harassment by providing a description and examples of conduct that would qualify as such. It's also important to point out to employees that sexual harassment may occur regardless of the genders of the employees involved and that harassment that occurs off-duty and off-premises but affects the work environment also is prohibited by the policy.

The policy also should delineate a complaint procedure for employees to use when they feel as though they have been victims of discrimination or harassment.

The complaint procedure should be designed to encourage reporting inappropriate behavior. Multiple individuals should be identified as being responsible for receiving discrimination and harassment complaints so that employees may bypass an individual who may be the perpetrator of the conduct or somehow involved in the discrimination or harassment.

The policy should indicate that while complaints will be kept as confidential as possible, information may be revealed on a need-to-know basis throughout the course of the investigation. Finally, employees should be encouraged to submit their complaints in writing to capture as much detail as possible.

The policy also should inform employees of their option to file a complaint with the EEOC and any state enforcement agencies. The policy should provide the contact information for those agencies.

The policy should be distributed to every employee, and it should be posted in a conspicuous location in the workplace. Annually, employees should be asked to reread the policy and to sign an acknowledgment form certifying that they read it and understand its provisions.

Attend the session on the creating and using employee handbooks, including electronic handbooks, at the Advanced Employment Issues Symposium

Train employees and supervisors
In conjunction with developing a written policy prohibiting discrimination and harassment, you should provide comprehensive employment law training to your employees, especially supervisors. There are several reasons to conduct such training.

• First, training reduces your exposure to discrimination and harassment claims. The U.S. Supreme Court has created an affirmative defense for employers that demonstrate a good-faith effort to prevent and remedy such conduct.
• Second, training can prevent discrimination and harassment claims by enabling supervisors to identify and promptly address such issues.
• Third, training encourages supervisors to engage in solid management practices and teaches them to avoid the creation of harmful evidence.

Your non-supervisory employees should receive training on the company policies prohibiting discrimination, harassment, and retaliation. They also should be trained on how to report or complain about discrimination, harassment, and retaliation and the procedure used to investigate such reports or complaints.

Your supervisory employees should receive more comprehensive training. Not only should they be trained on the company's policies prohibiting discrimination, harassment, and retaliation and the corresponding complaint procedure, but they also should be trained on the following subjects.

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Americans with Disabilities Act (ADA)

• Explain to supervisors how and when they may make a disability-related medical inquiry.
• Explain to supervisors that all medical information related to an employee's disability must be kept confidential.
• Train supervisors on how to spot issues related to an employee's disability and her job performance.
• Train supervisors on the obligation to engage in an interactive dialogue to identify reasonable accommodations for qualified individuals with disabilities.
• Train supervisors on the appropriate areas of inquiry in the interview/hiring process, keeping in mind antidiscrimination policies and the ADA.

Performance evaluation process

• Train supervisors on the importance of providing honest and objective performance evaluations . They shouldn't hold back if an employee is underperforming.
• Explain to supervisors that performance evaluations should be concise and accurate. When appropriate, they should cite specific examples.
• Remind supervisors to be consistent to avoid the appearance that they have targeted any one individual for heightened scrutiny.
• Caution supervisors about using judgmental comments or hyperbole in the performance evaluation.
• Instruct supervisors to refrain from statements that establish commitments.

Documentation

• Inform supervisors that all non-privileged documents most likely will be revealed during the course of litigation.

In part two of this article next week, we'll discuss the importance of documenting and investigating well, taking remedial action, and performing a self-audit.

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Copyright 2007 M. Lee Smith Publishers LLC. This article is an excerpt from VERMONT EMPLOYMENT LAW LETTER. VERMONT EMPLOYMENT LAW LETTER does not attempt to offer solutions to specific problems, but rather to provide information about current developments in Vermont and federal employment law. Inquiries about specific problems should be addressed to the labor or employment law attorney of your choice. Vermont does not certify lawyers as specialists in labor and employment law or other areas of concentration.