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EEOC Ramping Up Workplace Anti-Discrimination Efforts

Employers should brace for increased enforcement by the U.S. Equal Employment Opportunity Commission after it received a budget boost and has a new board member, breaking a deadlock that’s been going on for nearly a year.

Here’s the latest EEOC news that’s pointing to more robust enforcement by the agency:

  • In the federal government’s fiscal year that ended on Sept. 30, 143 lawsuits were filed against employers for alleged discrimination against employees, 52% more than in 2022. All but three of them were filed in the last eight months of the year, indicating a rapid increase that’s spilling over into the current fiscal year.
  • The EEOC’s budget for 2024 increased $26 million, or 6%, from 2023.
  • The composition of the five-member EEOC changed in July, when a new commission member was finally confirmed after a year-long wait, giving Democrat-appointed members a majority. The commission had been deadlocked up until that point with two Republican-appointed members and two Democrat appointments.

These developments indicate that the EEOC will step up its enforcement of federal employment laws. Accordingly, employers should be extra-vigilant in preventing acts or conditions in the workplace that might appear to break the law.

The EEOC is a federal agency charged with enforcing federal laws that prohibit discrimination against job applicants and employees on several grounds. These include race, sex, color, religion, age and disability, among others.

In recent years, the number of lawsuits it filed has shrunk. During some years of the Obama administration, it filed more than 300 suits annually. That number fell to 97 in 2020 and was 124 in 2021.

An EEOC investigation can have several effects on an employer:

  • Time that would have been spent running the business must be dedicated to responding to the charges. Work activities are disrupted as the EEOC requests documents and interviews staff members.
  • Employee morale can tumble when staff find out the government is investigating alleged discriminatory practices.
  • It can tie up the employer for a very long time. The EEOC says most investigations take 10 months or so, but experts say that is an underestimate.

How to prevent an EEOC investigation

The best thing an employer can do is to avoid giving workers any reason to believe they’ve been victims of discrimination. You can do this by:

  • Establishing a strong and clear written anti-discrimination policy. It should expressly state that discrimination against any of the protected classes of employees is illegal and intolerable. You should include it in your employee handbook and communicate it often to workers. A good policy will include easy to understand examples of prohibited conduct.
  • Establishing an anti-retaliation policy. It should make clear that employees who complain of illegal discrimination against themselves or colleagues will not be retaliated against. EEOC statistics showed that most of the complaints it received in 2020 were for retaliation.
  • Training managers and other employees on compliance with applicable laws.
  • Developing and following a consistent process for addressing complaints.
  • Promptly investigating all complaints of discrimination and taking actions, if necessary.
  • Thoroughly documenting all steps in the investigation and retaining the records for future reference.
  • Using progressive discipline with violators, with the severity of the consequences increasing for each subsequent violation.

Insurance

Every employer should carry employment practices liability insurance. This coverage protects the business against claims of discrimination, harassment, retaliation and other wrongful workplace acts.

However, there can be great differences between policies, so it’s important that you work with us to find a policy that is right for your organization.

The EEOC is clearly taking employee discrimination claims more seriously. That makes it all the more important that your organization does the same.

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Retaliation Accounts for 35% of All EEOC Complaints

The Equal Employment Opportunity Commission is seeing a wave of retaliation complaints by employees. Retaliation charges accounted for more than 35% of all charges filed with the commission in fiscal year 2022.

Retaliation means any adverse action that you or someone who works for you takes against an employee because they complained about harassment or discrimination. Any negative action that would deter a reasonable worker in the same situation from making a complaint qualifies as retaliation. 

Employees who participate in an investigation of any of these problems are also protected. For example, you cannot punish an employee for giving a statement to a government agency that is looking into a discrimination claim.

Employment law attorneys say that the increase is in part because employees who sue for retaliation have a higher degree of success than those who bring a regular discrimination charge. It’s important that all employers train their managers and supervisors to not retaliate against workers making complaints, as the result can be a costly lawsuit.

Thanks to a precedent-setting case, Burlington Northern & Santa Fe Railroad vs. White, while an employee alleging discrimination must prove that they suffered a “materially adverse employment action,” a retaliation plaintiff only needs to show that the employer undertook some action that may dissuade them from making or supporting a charge.

Employment law experts recommend that employers do the following:

Set clear and unambiguous policies

  1. Your company policy should clearly state that retaliation is not permitted.
  2. The policy should describe the parameters of inappropriate conduct as well as you can define them.
  3. Put the policy in writing.
  4. Set reporting and grievance procedures, including the person to whom the employee can report a retaliation complaint.
  5. Have staff sign an acknowledgment of receipt of your policy.

Investigate complaints promptly

  1. Remember that anyone who participates in an investigation is likely protected from retaliation (not just the employee who makes a complaint, but witnesses as well).
  2. Communicate results of the investigation to the grievant.
  3. Take effective remedial measures, including carefully reviewing all disciplinary measures before imposing them. You should also ensure that disciplinary actions are consistent with past practices.

Train managers and supervisors

Finally, you should train managers and supervisors and ensure they understand your policies.

Make sure they understand who is protected from retaliation (participants, complainants, and even persons related to the complainant in some cases).

They should also understand what constitutes retaliatory conduct and, if they are unsure, they should speak to your human resources manager.