There are two primary messages employers need to know regarding the EEOC suspension of case closed and right-to-sue notices.Continue reading
When a company is in the news for paying out at large harassment discrimination settlement, the first thought is that they did not conduct an appropriate investigation. But that is not always the case. Last week the EEOC ended an investigation into claims of harassment by employees in two Ford facilities in the Chicago area. (https://www.eeoc.gov/eeoc/newsroom/release/8-15-17.cfm) Based on the findings, Ford agreed to settle the claim for $10.125M in monetary relief to multiple female and African-American employees who had claimed sexual and racial harassment. Ford chose to voluntarily resolve this issue with the EEOC, without admission of liability, to avoid an extended dispute.
A spokesperson for Ford provided a statement that, “Ford does not tolerate harassment or discrimination of any kind; we are fully committed to a zero-tolerance, harassment-free work environment at all facilities and to ensuring that Ford’s work environment is consistent with our policies in that regard. Ford conducted a thorough investigation and took appropriate action, including disciplinary action up to and including dismissal for individuals who violated the company’s anti-harassment policy.” As such, it appears that they met the legal requirements. So that may have you wondering what went wrong.
It is simply not enough to conduct an investigation once an employee or group of employees comes to HR and files an official complaint. A company must be able to prove that their managers are trained regularly on what behaviors to look and listen for, in order to stop the behaviors before they become systemic or egregious. And take prompt action to investigate immediately at the first sign of a problem. It is equally important to ensure appropriate follow up post investigation to ensure the improper behaviors have stopped and no retaliation is taking place.
In the Ford Motors case, there was reasonable evidence that employees and managers were aware of the behaviors which were claimed to meet the definition of harassment, and that they did not address the issue in a timely manner. Their excuse was that no official complaint was made, even though there was open discussion by employees in the workplace, so no investigation was required. This resulted in the improper conduct continuing, and affecting more employees, until an actual complaint was filed. By the time a formal investigation was conducted, the EEOC found that the company had retaliated against employees who complained about the harassment or discrimination.
In addition to the $10 million to be distributed among the claimants, Ford will be under the scrutiny of the EEOC for a period of five years and will be required to report any employee complaints of harassment and/or related discrimination. They must also provide documentation that they are continuing to disseminate their anti-harassment and anti-discrimination policies and procedures to employees and new hires. And provide proof that they are constantly monitoring their workforce for issues of alleged sexual or racial harassment and related discrimination, to include monitoring by managers.
To prevent this from happening to your company, take the following steps:
Institute a walking management policy. This type of policy requires all supervisory employees to spend a required amount of time each day observing and interacting with their workforce, and noting conversations and behaviors that may signal problems.
Train supervisory, HR and executive employees on what signs to watch for. For example, the absence of conversation when managers walk in the room, changes in absentee patterns and physical rigidity or avoidance when interaction with a specific employee or employees are required.
When it is noticed that an employee is acting differently, start a conversation. Even if it only includes small talk to begin with, it will increase the comfort level of the employee in coming forward with a complaint.
Prove that the company/HR open door policy is effective by making it a priority to stop what you are doing to allow employees to come in and talk. It can be difficult for an employee to come forward, and if they are shut down on the first attempt they will generally not try again. Then follow up on the information you receive, even if there is no formal action to be taken.
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Any employee who feels he/she has been discriminated against or harassed can file a complaint against her employer with the Federal Equal Employment Opportunity Commission (EEOC) or State Fair Employment Office. Whether or not the complaint has merit, the employer must then spend time, effort, and often money to defend their position. Knowing what steps to take can help an employer show cooperation, while positioning themselves for defense if needed.
Once the EEOC receives a complaint, the employer will be notified by letter within 10 days. The letter does not imply findings against the employer. Rather, it is the first step the EEOC will use to determine whether there is reasonable cause to believe a violation has occurred. The letter will request a “Statement of Position” from the employer. This document is where the employer tells their side of the story. However, the information provided may be used for or against you. Therefore, there are three things to consider before submitting your position statement:
- If you have an attorney, it may be wise to notify him or her of the complaint and ask for a review of the position statement prior to sending it to the EEOC.
- If you have an Employer Professional Liability policy (EPL), chances are it requires you to contact the carrier prior to submitting the position statement.
- You must report only the facts. These facts will need to be verifiable, and opinion is not advised.
If you do not have or choose not to contact your attorney, I highly suggest reviewing the EEOC resource guide on effective position statements.
Next, the EEOC follows up with a formal Request for Information. The RFI may ask the employer to submit policies, the charging employee’s personnel files, the personnel files of other individuals and other relevant information, such as proof of training and contact information for potential witnesses. The EEOC may also request a visit to the workplace to view evidence and interview potential witnesses. Although this can speed up the information gathering process, it can also be disruptive to the company and create an over-exposure of facts. If the EEOC does not come on-site, they will likely still contact employees who may have pertinent information or may be witnesses to the case. They have the right to do this with non-management employees without the employer’s knowledge or permission.
It is important to provide all information requested by the deadline provided. In the case of unforeseen circumstances that make it impossible to meet the submission date, an extension must be requested from the EEOC Investigator. Once submitted, the EEOC will review the information to determine whether the complaint merits further action. One or more of the following actions will then take place.
- A Dismissal and Notice of Rights will inform the employee that the EEOC has dismissed the case, yet she still has the right to file a lawsuit with the federal court within 90 days.
- A Letter of Determination will state that there is reasonable cause to believe that discrimination/harassment has occurred and invite the parties to join the agency in seeking to resolve the charge through an informal process known as conciliation.
- If conciliation fails, the EEOC has the authority to enforce violations of its statutes by filing a lawsuit in federal court on behalf of the employee or issuing the employee a Notice of Right to Sue, and she may file a lawsuit in federal court within 90 days.
Although this process can be a time burden, preparing ahead by conducting and documenting prompt, thorough and impartial investigations can put a quick end to the fact-finding process, and limit liability exposure. InvestiPro can help. See our demo at www.goinvestiPro.com.