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EEO Compliance and Litigation Preparedness: A Primer for Business Owners

By February 10, 2016June 16th, 2016Advanced Planning, Uncategorized

There is no denying it: Business-owners face various forms of litigation including commercial disputes, workers’ compensation claims, personal injury actions, and employment litigation. But employment litigation is quite unique from other types of legal disputes. For one, the claims often involve allegations that management acted unlawfully or that the corporate “culture” is somehow biased. Because of these distinct issues, the investigation of claims can disrupt employee relations and impact productivity. Moreover, if litigation is filed, the allegations can cause a public relations nightmare. Fortunately, EEO compliance helps avoid claims and establish viable defenses if a discrimination claim does arise.

What is Equal Employment Opportunity?

Equal Employment Opportunity (“EEO”) generally refers to laws that prohibit employers from treating employees differently because of protected characteristics such as sex, color, religion, disability, and age. The Equal Opportunity Employment Commission (“EEOC”) is responsible for enforcing the federal EEO laws such as Title VII of the Civil Rights Act of 1964. To resolve EEO disputes before they reach the court-system, employees are typically required to file a charge of discrimination with the EEOC (or its state equivalent such as the Pennsylvania Human Rights Commission) before filing a complaint in court.

The administrative process can be beneficial for employees and employers as claims with nominal value and/or questionable merit can be resolved early, before litigation costs are incurred, while meritorious but defendable claims will proceed to court. In New Jersey, however, employees are not required to file a charge of discrimination before filing a complaint. Rather, under the state’s broad EEO law, the New Jersey Law Against Discrimination (“NJLAD”), employees can file directly in court. As a result, aggrieved New Jersey employees typically bypass their federal EEO rights and only assert claims under the NJLAD. Indeed, the EEOC charge statistics demonstrate that Pennsylvania employees are nearly four times more likely to file a charge with the EEOC than New Jersey employees.


How do business owners prepare for EEO Claims?

The key to litigation preparedness is EEO compliance. At a minimum, EEO compliance requires (1) company-specific EEO policies, (2) employee education about company policies, (3) consistent application of company policies, and (4) proper documentation.

The EEO Policy

Through company-specific EEO policies, each employer declares its prohibition against workplace discrimination, harassment and unlawful retaliation. The employer also promises to remedy EEO violations brought to management’s attention. To that end, the policy must include a neutral reporting process, through which aggrieved parties and witnesses are urged to report any perceived EEO violations to any member of management.

Employee Education

Of course, company policies cannot be effective unless employees are aware of and understand them. While employers are required to display posters from the Department of Labor, employee education about EEO laws and company-specific policies is best achieved through the distribution of properly crafted and regularly updated employee handbooks accompanied by annual or semi-annual employee training. Employment laws are ever-evolving and, as a result, employers should seek legal advice to ensure their handbooks and training sessions comply with federal and state laws. But, at a minimum, handbooks should include the company’s EEO statement and reporting procedure along with general company policies such as hours of operation, compensation, company holidays, paid time off, leaves of absence, performance requirements, disciplinary procedures, and workplace safety. By including all company policies in one place, employee handbooks can serve as both a clearinghouse of information and a highly effective litigation tool.

Be Consistent

Inconsistency can, at times, be used as circumstantial evidence of discrimination. Prompt and consistent investigation of potential policy violations is crucial to avoid this trap. Investigations will vary based on the circumstances but typically must include witness interviews/statements, review of surveillance footage, and/or review of available documentation. If a policy violation is confirmed—be it a violation of EEO policy or otherwise—action should be taken in accordance with the company’s disciplinary policy.

Document, Document, Document!

Finally, all policy violations and performance issues must be discussed with the employee at issue. The discussion should be witnessed by a neutral member of management and documented on a standard company form signed by all present. If litigation arises, proper documentation of policy violations and/or performance issues will serve as your best defense while the absence of same just might become your former employee’s strongest evidence of discrimination.

Business-owners should seek legal counsel to audit company policies, for guidance on EEO compliance, and/or for advice on responding to specific personnel issues.

[author] [author_image timthumb=’on’][/author_image] [author_info]Anna M. Darpino is a Senior Associate with McDonnell & Associates, located in King of Prussia, PA. She focuses her legal practice on labor and employment law defending large, national corporations and small, local businesses against allegations of unlawful employment practices. Anna also represents individuals who have been subjected to discrimination, harassment and/or retaliation in the workplace. Anna also has extensive experience guiding employers on workplace conduct including drafting employee handbooks, employment agreements and company policies. She also prepares and facilitates anti-discrimination and anti-harassment training programs for employers. Prior to joining McDonnell & Associates, Anna was a senior associate at Kaufman Dolowich & Voluck where she handled cases involving employment practices liability defense. Anna can be reached by phone at (610) 337-2087 or by email at [email protected].[/author_info] [/author]