When it comes to avoiding EEOC scrutiny and investigation, smart employers do not assume that they “already know everything they need to” or that “just using common sense is enough.” Other organizations have learned the hard way that simplistic and short-sighted approaches are not sufficient. To protect your organization from costly and undesired EEOC inquiries and ensure your employees enjoy a workplace free of discrimination and harassment, a deliberate and disciplined approach is required. Below are nine musts that can help foster an effective, EEOC-compliant workplace:
- Promote a culture of civility and intervention – In its recently published report on harassment in the workplace, the EEOC encourages employers to build cultures hallmarked by civility and bystander interaction (“if you see something, say something”). The Commission also noted in the discussion its belied that culture starts at the top of the organization.
- Assess exposure points in your organization – In examining the characteristics of employers who have had claims brought against them, the Commission found several common and recurring points in these organizations. It’s important to note that these characteristics are not violations in and of themselves, but they should demand added examination by employers. They include:
- Workplaces with an absence of diversity.
- Environments where language and cultural differences are present.
- Workforce comprised of predominately young employees.
- Organizations with high power disparities among employees.
- “Entertainment” cultures that encourage alcohol consumption or risky behavior.
- Workplaces with "high value" employees that some could view as subject to a “different set of rules” as others.
- Decentralized workplaces and environments with highly dispersed workforces.
- Be certain that needed policies are in place - “We tell people when they’re hired...” and “that’s just not who we are...” are not reasonable or adequate defenses in demonstrating your status as an equal opportunity employer. And while policies alone are not either, they are a critical starting point for formally articulating your organization’s stance on these important issues. A comprehensive anti-harrassment policy should be developed and communicated in a variety of formats and delivery methods.
- Demonstrate that “disparate treatment” will not be tolerated – Disparate treatment is the perceived intentional less favorable treatment of an employee or individual because of a statutorily protected trait such as race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. The EEOC will also look to see if the treatment is the result of a “discriminatory motive or intent.”
- Understand and evaluate potential “disparate impact” - Disparate impact is distinct from disparate treatment. Here, employment practices that on the surface appear neutral in their application to different employee groups may (often unknowingly) fall more heavily on one employee segment than another.
- Examine employee accommodations for equity – If you make allowances or accommodations for one or more employee groups (even if you feel justified in doing so), determine with an authoritative party whether you need to make the same accommodation(s) for others. This may include work-from-home allowances or other condition-based accommodations.
- Clearly explain the claims filing process and protect confidentiality – Employees need to feel safe in bringing forward claims of discrimination and harassment and not experience additional anxiety or burden in having to “figure out” the process they should follow. Employers should ensure the procedure is understood and protect confidentiality throughout and after the investigation process, to the extent practicable.
- Ensure understanding (and intolerance of) retaliation – In addition to providing an effective complaint process, employers must also be 100% clear that any form of retaliation against employees who have made a claim will not be tolerated.Employers are also prohibited from retaliating against anyone who testifies or participates in any way in an investigation, proceeding, or lawsuit; or who opposes employment practices that they reasonably believe discriminate against individuals, in violation of the law. This is another element that needs to be communicated verbally and in written form and reinforced at regular intervals. It’s important to note that employers can be sued for retaliation even when it’s related to claims that were found to devoid of discrimination.
- Be considerate of “vulnerable” workers – The term “vulnerable workers” applies to more than just one particular group. In essence, vulnerable workers are those who may be unaware of their rights, or may have greater exposure to injury or illness because of their reticence to ask questions, communication barriers or their distinct differences from other employees. Employers should be mindful that their policies and practices protect vulnerable workers as well.
After reading through the respective points above, it may still be tempting to hold on to a “common sense is enough” paradigm. But the history of EEOC rulings, findings and analysis shows that is often insufficient. Your business and your employees deserve a comprehensive and clear commitment to ensuring a safe, effective and compliant workplace.