How to Prevent an EEOC Investigation

The U.S. Equal Employment Opportunity Commission (EEOC) investigates and enforces the nation’s federal equal employment opportunity workplace laws.

The laws forbid discrimination based on several legally protected factors, including:

• Age (40 or older)
• Color
• Disability
• Genetic information
• National origin
• Race
• Religion
• Sex (including pregnancy, gender identity, and sexual orientation)

Illegal harassment can also occur because the employee opposed job discrimination or participated in an investigation.

Impact of EEOC investigation

An EEOC investigation can have an enormous impact on an employer’s business. For example:

• Responding to charges can be time-consuming and disruptive.
• Can negatively impact employee morale.
• The investigation can be lengthy.

While the EEOC says most investigations take about 10 months to complete, legal experts say the inquiries take much longer.

While the EEOC says most investigations take about 10 months to complete, legal experts say the inquiries take much longer.

The ending of the investigation can include fines and penalties and, in some instances, years of government monitoring.

Prevention Tips

As a result of the challenges associated with them, it is best to avoid EEOC investigations, making the prevention of claims a desirable strategy. Legal experts and agency guidance offer employers tips to prevent bias claims.

Establish A strong anti-discrimination policy

Employers should establish a clear and express anti-discrimination policy.

Include the policy in the company’s employee handbook. The policy should be in writing and, according to EEOC guidance, explicitly state that discrimination based on one of the legally protected classes is illegal and will not be tolerated.

Employers need to provide examples of misconduct so employees are clear about prohibited behaviors in the workplace.

The policy should have an anti-retaliation provision. This stipulation should state that “retaliation against anyone who complains of harassment or participates in an investigation will not be tolerated.”

Finally, as part of the policy, workers should be told that after an investigation of worker complaints, the employer will not hesitate to take corrective action if misconduct is found.

Make employees aware of the anti-discrimination policy

After establishing an anti-discrimination policy, employers should make sure that employees are familiar with it.

Legal experts suggest that employers provide a detailed orientation for new hires, during which they are given a copy of the handbook, and HR goes over the book with them. This way, later misconduct allegations protect employers.

Employees should be required to sign an acknowledgment that they have received the handbook and that they are responsible for being aware of the information contained within the book.

Small businesses can handle things differently. According to the EEOC, companies that are “small enough where the owner maintains regular contact with all employees can simply tell employees at staff meetings that:

• Harassment is prohibited
• Employees should report such conduct promptly
• They can bring complaints straight to the top.”

Develop a complaint system

Employers should have a robust reporting system in place. Encourage workers who have been subjected to discrimination or retaliation to speak up. The EEOC has found that less than one-third — about 30% — of employees experiencing harassment on a legally protected basis talked to a manager or supervisor.

Employers should assure employees that they will take complaints seriously and will promptly and thoroughly investigate them.

As part of a complete reporting system, employers should clearly explain to employees how to make a bias or harassment complaint. An explanation of employee complaint procedures should be part of the employee handbook, most likely in a “Policies and Procedures section.”

Workers should be provided with the means to complain to more than one person. Sometimes, an immediate supervisor or an HR rep is the alleged harasser. As a result, the EEOC suggests that complaint procedures provide a means for workers to report bias to more than one person.

Lack of anonymity while making a complaint can be an issue. Research shows that to increase reporting rates, companies need to offer anonymous reporting channels such as:

• Hotlines
• Chatbots
• Website forms
• Phone apps

However, the resolution of complaints typically requires exposing the identity of the worker who made the complaint.

Know when to turn things over to HR

Develop and conduct training, so managers know when to escalate things to HR. HR often has training that managers and supervisors lack.

Investigate claims and take necessary action

The EEOC recommends a “prompt, thorough, and impartial investigation” once the company receives a complaint.

After an employee has complained, the employer is “on the hook to do something,” legal experts say. However, regulators don’t require that employers fire or demote individuals accused of discriminatory acts. The EEOC has suggested separating the parties involved in the complaint. However, the separation should not be a hardship to the person who complained about harassment. The federal agency says interim measures such as schedule changes or offering leave with pay are acceptable.

After an employee has complained, the employer is “on the hook to do something.”

Employers should keep thorough records of the inquiry and document everything.

Failing to investigate can lead to lawsuits. The EEOC sued an Arkansas restaurant in 2019, alleging that it ignored complaints that two managers were sexually harassing employees.

On the other hand, an employer can avoid legal liability by taking prompt action in the face of credible evidence of discrimination and harassment. An Iowa federal trial court decided that an employer was not liable for harassment alleged by three truck drivers even though extensive evidence of a hostile work environment was presented. The employer argued that it undertook actions that were:

• Aimed at stopping the alleged harassment
• Prompt
• Reasonable

The court agreed.

According to EEOC guidance, “If the business conducts a prompt, thorough, and impartial investigation of any complaint that arises and undertakes swift and appropriate corrective action, it will have fulfilled its responsibility to “effectively prevent and correct harassment.”

Employers shouldn’t fear an investigation. Sometimes inquiries find that there was no misconduct.

Don’t retaliate

Employers need to ensure they protect employees from retaliation that if they file a complaint or provide information about a worker’s bias complaint.

Employee claims of retaliation are common. The EEOC said FY 2020 data showed that retaliation was the most frequently cited claim in charges filed with the agency. In fact, the EEOC stated that retaliation accounted for “a staggering 55.8 percent of all charges filed.”

Use progressive discipline

Progressive discipline helps in preventing claims, according to legal experts.

Progressive discipline is a disciplinary method that uses graduated steps for dealing with issues related to an employee’s conduct. It can start with a verbal warning and then move on to a couple of written warnings, suspension, demotion, and eventually termination.

Training

Training is important. Legal experts recommend that companies need to provide managers with compliance training on relevant state and federal employment laws. They also recommend providing employees with annual training.

Periodic training, especially for managers, is “crucial” in preventing and in defending against claims, David Miklas, a Florida-based employment law attorney, said. “It’s usually the managers who create the problem,” Miklas observed.

Periodic training allows employers to tell federal investigators that they have a strong anti-harassment policy.

Periodic training allows employers to tell federal investigators that they have a strong anti-harassment policy and that, for example, “by the way, last year we trained on harassment.”

Miklas told Zenefits that training managers and HR pros is his “biggest prevention tip” for combatting workplace discrimination. Miklas, who conducts workplace investigations, said the money employers spend for training is well-spent, especially when weighed against the much higher cost of responding to an EEOC investigation.

Culture

An inclusive work culture can go a long way toward preventing workplace discrimination. Toxic company cultures encourage discriminatory acts. Employers should consider adopting an inclusivity policy stating that everyone is treated equally and fairly.

Conclusion

If employers allow discrimination to go unchecked, they face financial and reputational loss as well as legal liability. The steps outlined above can help foster a workplace of professionalism and respect for personal differences.