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How Employers Can Avoid Becoming an EEOC Statistic: Part 2

by Amy M. McLaughlin

In part one of this article, we discussed the increase in the number of discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) against private-sector employers since 2006. In 2006, the EEOC saw it’s first increase in charge filings in four years. By 2008, the number of discrimination claims filed with the EEOC had jumped another 25%.

With discrimination charges on the rise, now is the time for employers to evaluate the policies and procedures they have in place to combat workplace discrimination. This two-part article will discuss ways employers can educate and train your workforce and suggest ways to handle internal discrimination complaints properly.

This week, we’ll discuss the importance of documenting and investigating well, taking remedial action, and performing a self-audit to make sure you’re preventing discrimination and harassment in the workplace and dealing with it appropriately if it does happen.

Audio Conference: How to Manage and Survive an EEOC Investigation: Legal and Practical Solutions for HR

Develop a documentation policy and train supervisors in how to document employee behavior
To help combat any discrimination or harassment claims, employers should enforce a uniform and consistent documentation policy for their supervisors. All performance issues should be documented consistently and not just in an annual performance evaluation.

Supervisors should create timely documents, contemporaneously noting poor performance. By doing so, an employer easily will be able to establish that an employee’s termination was performance-based and in no way related to her protected characteristic.

In documenting performance issues, supervisors should be sure to:

  • include specific examples;
  • identify any prior counseling and an employee’s failure to correct the issue;
  • explain the consequences of an employee’s failure to correct performance deficiencies;
  • implement the documentation practices uniformly and not single out a particular individual;
  • be objective; and
  • avoid unnecessary labels or adjectives, and just state the facts.

Most significantly, employers should educate supervisors about the litigation process. Specifically, supervisors need to be aware of the prospect that any and all documentation may be revealed during the litigation process.

That includes electronic information such as e-mails; data stored on backup tapes, BlackBerries, personal digital assistants, and cell phones; Internet cache files, cookies, and favorites; and instant, text, and voice-mail messages. Supervisors should understand that they shouldn’t include statements in their documentation that they would later regret hearing read back to them in front of a jury.

Basic Training for Supervisors guidebook series, including documentation and performance evaluations

Investigate discrimination and harassment complaints
Once a discrimination or harassment complaint has been brought to an employer’s attention, it’s obligated to conduct an investigation into the matter. The investigation should be conducted promptly but thoroughly. Below are guidelines to assist employers in investigating a discrimination or harassment complaint:

  • Select an investigator who is impartial and experienced in conducting such investigations.
  • Consider interim action given the circumstances of the complaint, i.e., a temporary change in working arrangements.
  • Address and deal with rumors quickly.
  • Never promise absolute confidentiality. Instead, explain that information will be revealed only on a need-to-know basis.
  • ‘Make sure to consider both sides of the story.
  • Inform every employee involved in the process that retaliation won’t be tolerated.
  • Maintain factual, accurate, and concise documentation of the investigation.

Workplace Investigations: The HR Manager’s Step-by-Step Guide

Take remedial action
Once an employer determines that discrimination or harassment has occurred in its workplace, it should take prompt remedial action. The action taken must be appropriate to the circumstances and consistent with past practices.

In deciding on the appropriate action, an employer should consider the egregiousness of the conduct, past conduct of the accused employee, any mitigating factors, and previous discipline imposed in similar circumstances.

Periodic self-audit
Once an employer has implemented a policy, conducted supervisor training, and set up a procedure to address complaints, it is well under way to preventing discrimination or harassment claims. Human resources’s job is never done, however.

Periodic reviews of your organization’s policies and procedures should be conducted. In addition, training shouldn’t be viewed as a one-time occurrence. Employers should continually educate their workforce on the company’s policies and procedures. By doing so, it may proactively avoid future litigation.

Audit your discrimination, harassment and other policies and practices with the Employment Practices Self-Audit Workbook