Equal Employment Opportunity (EEOC) investigations can feel daunting even for the most seasoned HR professionals. They’re shrouded in legal jargon and procedural complexities—and there’s potentially a lot at stake. But peel back the layers, and you may be surprised how straightforward they can be (and how they can be avoided) as long as you’re prepared and responsive.
You might feel that EEOC investigators are relentless in their pursuit and punishment of employers. After all, the agency recently announced that it has “strategically focused its resources in fiscal year 2023 to combat discrimination using all of its tools, including outreach and education, technical assistance, and enforcement.” The agency also emphasized systemic enforcement to maximize its impact this year, filing nearly double the number of systemic lawsuits compared to each of the past three fiscal years. It also “obtained millions in monetary benefits for workers in pursuit of its mission to prevent and remedy unlawful employment discrimination and advance equal employment opportunity for all.”
Then there’s the EEOC’s 2020 report that it has a 96% success rate, reaching favorable outcomes in nearly all district court cases stemming from complaints. So, a complaint landing on your desk may give you a sinking feeling that your organization is about to become one of those notches on the EEOC’s belt.
But here’s a critical point to also keep in mind: Most EEOC investigations settle outside of court, if they even reach that point at all. The agency only has the resources to take a select few cases to court. It’s looking for resolution, the easiest way that can be accomplished.
Be Proactive in Your Documentation and Reporting
In EEOC investigations, agents seek evidence of illegal treatment. Proactively following documentation and reporting procedures to the letter can help you help them reach a resolution faster. That includes the newly designed EEO-1 Component 1 Data Collection report, a mandatory annual data collection for all private sector employers with 100 or more employees and federal contractors with 50 or more employees meeting specific criteria.
EEOC investigations are particularly sensitive to indications of retaliation. A 2021 study by UMass Amherst illustrates why: At least 63% of workers who filed a complaint eventually lost their jobs. That number was even higher for workers who filed a disability-related claim, at 67%. About 40% of workers who filed a claim reported employer retaliation, such as verbal abuse or being passed over for work opportunities like training or promotion. At 46%, employer retaliation was most common for sex discrimination cases.
Therefore, it’s essential to have procedures in place that are known by workers and managers alike and that are followed consistently.
“Tell employees that it’s OK to raise your hand if you’re experiencing what you feel is harassment or discrimination and then back up that assertion with policies and procedures that make employees feel safe to do just that,” Amy Beckstead, employment attorney at Beckstead Terry Ditto PLLC, reminded us in our coverage of the Fox News sexual harassment case several years ago. Then, she added, act quickly to address the employee’s issue and resolve the matter. Do a good enough job at this front end, and you may even avoid EEOC involvement altogether.
“Conducting a prompt and thorough investigation of claims of harassment and discrimination and taking appropriate action will reduce or eliminate an individual’s desire to file an EEOC charge and subsequent litigation,” Beckstead had also told us previously.
But to cover your bases, familiarize yourself with the steps to expect if you do get that dreaded EEOC notification. The EEOC will contact you within 10 days of a charge being filed. You’ll be directed to the EEOC Respondent’s Portal to learn more. At this point, many organizations may choose to resolve through mediation or settlement. Take the time to understand your options and bring an employment attorney in as early as possible to help you weigh them.
Stay on Top of Emerging Issues and Policy Changes
COVID-19 vaccine mandates caused a considerable bump in EEOC investigations related to possible religious bias, as you can imagine. It’s important to understand how these types of influencing factors—as well as the EEOC’s own changes—can threaten your organization’s “business as usual.”
More recently, EEOC investigations have ramped up regarding what the agency considers “overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements” as well as “unlawful, unenforceable, or otherwise improper mandatory arbitration provisions.” At our most recent Employment Law Lunch and Learn, Beckstead gave another example of the EEOC’s evolving focuses, explaining how the agency is taking notice of how technology and data automation are stirring up discrimination issues.
“They’re interested in how employers are using technology to recruit and screen people,” she pointed out. Are you running Facebook ads for your job openings? When you do that, are you targeting people of certain ages or demographics? They may also look at what technology platforms you’re using to screen resumes and whether you’re using any factors there that are unfair.
“You may be adopting technology that you have no idea could be having a disparate impact because it’s excluding people,” she added. “Anytime you adopt technology dealing with recruiting, applicant tracking, or screening resumes, delve a little deeper and ask questions like, ‘How does this work? Who might this exclude and why?’ Because that is exactly the kind of thing that the EEOC is going to look at.”
As an HR professional, keep in mind that your role is crucial when it comes to proactively following best practices and responding to EEOC investigations if they occur. You’re the keeper of records, the overseer of culture, and the liaison between the EEOC and your colleagues. Remember that responsiveness, documentation and cooperation are key.
