Allison West admits she was surprised when she found herself convinced by the argument that the Equal Employment Opportunity Commission isn’t out to get everyone it investigates.
West has spent much of her professional life advising companies charged with discrimination and other legal imbroglios on how to deal with the EEOC. That’s why it must have come as a bit of a shock to hear herself mutter, “The EEOC is actually out there to help employers.”
West, who recently presented the latest installment of the Employers Resource Council’s Litigation Prevention Series, “Demystifying the EEOC – Get to Know Them Before They Want to Get to Know You,” was convinced by Cindy Stankiewicz, a program analyst for the EEOC. EEOC District Director Mike Fetzer also spoke at the program.
“The main goal of the EEOC is one that really needs to be protected,” West says. “And that’s preventing job discrimination.”
The program was designed to explain recent changes at the agency and provide business owners and HR professionals with ways to deal with charges of discrimination and potential EEOC investigations.
Mediation
Stankiewicz echoed the words of Ronald Reagan, who once said, “The nine most terrifying words in the English language are, ‘I’m from the government, and I’m here to help you.'”
For many business owners, that’s clearly the case. And while the agency recognizes that no executive team will ever welcome it with open arms, it has developed policies and procedures that should smooth the process and decrease the number of investigations into frivolous or retaliatory claims.
The EEOC prioritizes investigation based on merit. Claims without merit will not be investigated, Stankiewicz says. Nearly 77,000 cases were reported in one recent year, and nearly 60 percent of those closed with no probable cause.
Many of the remaining cases were dealt with through voluntary and confidential mediation.
“I cannot recommend strongly enough that you participate in mediation,” Stankiewicz says. “Resolve it in the Alternative Dispute Resolution room, not in the courtroom.”
Doing so will save time and money.
While mediation is not binding, 65 percent of cases are resolved this way. A whopping 95 percent of the parties involved would recommend or go through the process again if there were a need.
Conciliation
Avoiding the trial process can play to the advantage of any business faced with discrimination. If found guilty of discrimination, the exposure is enormous. Penalties include:
- Reinstatement
- Hiring/promotion of employees with back pay
- Compensatory and punitive damages
- Back wages, liquidated damages, injunction
- Attorney and expert witness fees, court costs
These penalties don’t include nonfinancial costs: morale, lost productivity and negative publicity.
After an investigation, if the EEOC finds “reasonable cause,” the agency will recommend conciliation. If that fails, it may pursue action through the federal court system.
Conciliation is used “to effect settlement and/or to eliminate unlawful employment practices,” Stankiewicz says. The remedies are varied and include changing a company’s policy, training, damages and promotion.
West acknowledges that conciliation is part of the resolution process, but recommends caution. She offers these caveats:
- It can be effective, depending on the type of case and the relationship of the parties.
- It can often be one-sided.
- Be cautious about providing new defense/facts — information obtained during the process may be used against an employer in a subsequent proceeding.
Prevention
The best defense, of course, is to never commit any illegal activities, but it’s not always easy to manage every member of your executive team. West and Stankiewicz offer this prevention advice:
- Listen when an employee raises questions and concerns about practices that may be discriminatory.
- Promptly investigate (within 24 hours).
- Report back to the employee about results.
- Do not retaliate against or criticize the employee for raising concerns, even if the employee is wrong.
- Document each step.
- Look internally at policies — are they applied evenhandedly? Are they fair? Are they understandable? Have they been disseminated to all employees? Are they updated?
- Conduct regular training on preventing discrimination and harassment to management and employees.
- See if there are any barriers in upper management.
- Communicate with EEOC investigators.
- Do not stonewall during the investigation — make an exhaustive search for documents, make employees available for interviews,
- Be less defensive in position statements.
How to reach: Employers Resource Council, (216) 696-3636; Equal Employment Opportunity Commission (Cleveland office), (216) 522-2001 or www.eeoc.gov
Daniel G. Jacobs ([email protected]) is senior editor of SBN.
