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Understanding the EEOC Complaint Process

Do you know what to expect if an employee files a complaint with the
EEOC" Find out what the complaint process involves and how to train
supervisors to stay out of trouble.
 
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Here are some statistics that should get you thinking. Last year, the
Equal Employment Opportunity Commission (EEOC) received over
79,000 complaints of employment discrimination and recovered more
than $250 million in back wages for the aggrieved employees through
settlements, mediation, and other administrative settlements.

And, these numbers don't even include the litigation the EEOC initiated
on behalf of complaining employees. The EEOC pursued 378 cases in
court and collected about $168 million to resolve them. Employees
alleged in these claims all forms of employment discrimination (race, sex,
national origin, religion, age, and disability) involving such issues as
hiring, termination, promotion, and leaves.

EEOC complaints can take months, and even years, to resolve and can
tie up your staff and divert attention from other pressing projects.
Further, even if the agency dismisses a complaint, the employees can
still file a lawsuit in court. Under these circumstances, an ounce of
prevention can go a long way to protect your organization from the fallout
of EEOC problems. Find out below what can trigger an EEOC
complaint
, what the agency does during the process, and how you can
reduce claims with training and internal complaint resolution programs.

* What the EEOC Oversees *

The EEOC is the independent agency created by Congress to enforce
federal employment discrimination laws. It has the authority to receive,
initiate, and investigate charges of discrimination involving employers
subject to these laws. Employees who believe they have been
discriminated against generally must file a formal written complaint with
the EEOC (or comparable state or local agency) before they may bring a
discrimination lawsuit for damages or reinstatement.

Laws the EEOC is responsible for overseeing include Title VII of the Civil
Rights Act (Title VII), the Age Discrimination in Employment Act (ADEA),
the Americans with Disabilities Act (ADA), and the Equal Pay Act (EPA).
Title VII, which prohibits employers from discriminating based on race,
color, religion, sex, or national origin, and the ADA, which prohibits
discrimination against disabled individuals and requires
accommodations, apply to employers with 15 or more employees.

The ADEA, which prohibits discrimination on the basis of age against
persons 40 and older, applies to employers with 20 or more employees.
The EPA, an amendment to the Fair Labor Standards Act (FLSA),
applies to all employers covered by the FLSA. It prohibits the payment
of different wage rates to employees of the opposite sex for equal work
or for jobs requiring equal skill, effort, and responsibility performed under
similar working conditions.

* Filing a Complaint with the EEOC *

To start the EEOC process, an employee must file a complaint with the
EEOC alleging discrimination. The EEOC then notifies the employer
within 10 days of receipt by sending you a copy of the complaint, the
name of the employee ("the charging party"), the basis for the charge
(i.e., race, religion, sex, etc.) and the issue(s) (i.e., hiring, promotion,
discharge, etc.) involved in the allegations, the date(s) of the alleged
discrimination, and the name and contact information for the investigator
assigned to the case.

In addition, the notification usually includes an explanation of the EEOC's
administrative charge process, your obligation to retain relevant records,
and the non-retaliation provisions of laws enforced by the EEOC.
Relevant records include any employment records relating to the issues
under investigation. Such records include files related to the charging
employee, other employees alleged to be aggrieved, and all other
employees holding or seeking positions similar to the one held or sought
by the complaining employee. These records should be kept until the
final disposition of the charge.

At this point, you should consult legal counsel for advice on how to
respond to the charge and the EEOC's investigation. An attorney can
help evaluate the merits of the allegations, determine what documents
are relevant, and coordinate the response to the charge and the
investigation.

In some cases, the EEOC will invite the employer to participate in
mediation before conducting an investigation. Mediation is an informal
means of dispute resolution offered by the EEOC as an alternative to the
traditional investigative or litigation process. If both parties agree, a
neutral third party and trained mediator conducts a mediation session to
help the opposing parties reach a voluntary, negotiated resolution of the
charge. The parties may, but are not required to, have an attorney to
participate in mediation. The EEOC's mediation program is a free,
voluntary, and confidential process that can save the parties time and
money by avoiding lengthy and unnecessary litigation. If mediation is
successful, the EEOC will close the charge without an investigation.

Even if mediation is not offered, you may request informal resolution
through conciliation or settlement since the EEOC is required to attempt
informal resolution of discrimination charges. Though the charge may be
settled at any point during the process, settling early clearly saves on the
time and effort associated with an EEOC investigation. If the parties and
the EEOC reach a voluntary settlement agreement, the charge will be
dismissed.

* The EEOC's Investigation *

If mediation or conciliation is unsuccessful, the charge will be referred for
investigation to determine if the facts support the employee's allegations.
In the course of that investigation, the EEOC will ask you and the
charging party to provide information. The agency may request the
following:

-- A statement of position. This document allows you to respond to
the employee's allegations and tell your side of the story.

-- A request for information (RFI). The EEOC may ask you to
provide copies of personnel policies, employee personnel files, and other
relevant information.

-- On-site visit. An on-site visit may render an RFI unnecessary, if
requested documents are made available during the visit.

-- Contact information for employees and/or witness interviews.
EEOC interviews with nonmanagment level employees may be
conducted without an employer representative, but you may be present
for any interviews with management personnel.

* Resolution of EEOC Charges *

Once its investigation is complete, the EEOC will make a determination
based on the evidence presented. If it finds no "reasonable cause" to
believe that discrimination occurred, it will dismiss the complaint and
send a Dismissal and Notice of Rights letter to the charging employee
and a copy to the employer. The letter explains that the employee may
still file suit on his own in federal court within 90 days from receipt of the
letter. (A charging party also may go to court instead of waiting for the
EEOC to complete its investigation. Therefore, in some cases, the
EEOC will issue a notice of right to sue if the charging party requests one.)

But if the EEOC finds "reasonable cause," it will send both parties a
Letter of Determination stating its finding and inviting them to resolve the
charge informally through conciliation. During this conciliation process,
the investigator works with the parties to develop an appropriate remedy
for the discrimination. Like mediation, the conciliation process is
voluntary. It represents a final opportunity for you to resolve the charge
before the EEOC considers litigation. Settlement agreements reached
through mediation or conciliation are not considered admissions of
liability, but are legally enforceable.

If conciliation fails, either the EEOC or the charging party (or both) may
sue in federal court. If the EEOC decides not to litigate, it will close the
case and issue a Notice of Right to Sue to the charging party allowing
him to sue in federal court within 90 days.

* Steps to Prevent Complaints *

Virtually every employment decision has the potential to result in a
discrimination claim. However, you should be particularly concerned
about those decisions that involve the subjective judgments of managers
or supervisors, like promotion and transfer, training, and discipline.
Therefore, to prevent EEOC claims, you have to do more than simply
adopt an equal employment opportunity (EEO) policy. You also must
reinforce your organization's commitment by applying EEO principles to
all decisions, terms, conditions, and privileges of employment, and all
policies, communications, and actions.

In addition, you should train supervisors in the basic requirements and
implementation of EEO laws. Training should provide supervisors
regularly updated information and instruction on the following:

1. The basic requirements of the numerous federal and state equal
employment opportunity laws, how to implement them, and the legal
consequences of noncompliance.

2. The proactive steps that should be taken to eliminate workplace discrimination.

3. The practical benefits of implementing equal employment opportunity.

4. Ways to respond to complaints of discrimination.

5. Ways to document and resolve complaints properly.

You also should actively encourage employees to report complaints of
discrimination, for several reasons. First, discrimination laws require you
to respond to these complaints promptly. Many courts have held
employers liable because they did not respond to incidents of
discrimination that they knew or should have known about. (Harassment
complaints often are lost on this point.) So, it is to your advantage to
know about potential problems so that you can respond appropriately.
Second, by encouraging employees to make complaints, you show your
commitment to eliminating discrimination. And finally, an internal
complaint process helps keep employees from looking to external forums
or venues, such as the EEOC or courts, for resolution of their complaints.

 
Subscribers to the Personnel Policy Manual and HR Policy Answers on
CD
can find more information about equal employment opportunity laws
in Equal Employment Opportunity, Chapter 201.
 
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http://www.ppspublishers.com/service2.htm

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Information provided in HR Matters E-Tips is researched and reviewed
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encouraged to seek appropriate legal or other professional advice.

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Absence
Attendance and Punctuality
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Rest Breaks
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Benefits
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Vacations
Holidays
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Conduct
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Drugs, Narcotics, Alcohol
Employment
Equal Employment Opportunity
Sexual Harassment
Hiring
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Introductory Period
Transfer
Promotion
Hours of Work
Outside Employment
Employee Classifications
Layoff and Recall
Termination
Retirement
Miscellaneous
Personnel Records
Community Participation
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Dispute Resolution
Pay Practices
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Performance Appraisals
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Personnel Responsibilities
Model Cover
Presidentís Letter
Functions of this Manual
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Reimbursement
Travel
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Work Areas
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Maintenance of Work Areas
Personal Property
Solicitation
Parking
Security
Smoking
Special Reports
2004 FLSA Regulations: Understanding the Issues

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