In 2010, an employee of HomeNurse Inc. went to the US Equal Employment Opportunity Commission (EEOC) and filed a charge claiming she had been discriminated against because of race, age, disability and genetic information, and that her employer had retaliated against her. It turned out the complainant was not disabled, is white, has no pre-existing genetic conditions, is under the age of 40, and was fired for posting confidential patient information on her Facebook page.
The EEOC responded to the charge by raiding the company, until company attorneys were able to contact the EEOC’s regional attorney to halt the raid. HomeNurse then spent three years battling the EEOC on the charge. Finally, Magistrate Judge Walter E. Johnson of the US District Court for the Northern District of Georgia issued a blistering ruling of the EEOC’s tactics and refused to enforce the subpoena.
Considering these practices, employers need to understand EEOC actions and trends, and what areas may leave them particularly vulnerable to scrutiny.
Some of the EEOC’s current approaches are plagued by numerous problems, a Senate report found. According to the report, “The courts have criticized EEOC for misuse of its authority, poor expert analysis and pursuit of novel cases unsupported by law. Several courts have openly criticized EEOC for its failure to satisfy pre-litigation requirements, such as attempting to resolve discrimination disputes out of court; yet, the general counsel is leading an effort to prevent court review of such requirements.”
Treading carefully
Dealing with the EEOC under any circumstance is challenging enough, but when faced with an aggressive, overreaching agency, employers need to be prepared, have a plan and understand where they may be most vulnerable.
Don’t be caught by surprise. According to the EEOC, in many cases employers “may opt to resolve a charge early in the process through mediation or settlement.” These represent voluntary resolutions. Employers need to understand their rights, and be prepared to defend those rights if necessary.
Have a plan. Companies need to make sure employees at every site know who to call when contacted by the EEOC or when investigators show up with subpoenas. The contact list should include managers, attorneys and HR. Having this information readily available will allow companies to respond immediately and minimize disruptions and potential intimidating activities.
In the current environment, it makes sense to have experts on speed dial. Employers don’t want to waste any time trying to find a lawyer with specific experience dealing with the EEOC. Proactively developing these relationships can help companies reduce the chances of drawn-out investigations or litigation.
It’s also important to know the potential trouble areas. The troublesome cases cited in the Senate report span different types of claims, from alleged Americans with Disabilities Act violations to supposed racial discrimination under Title VII of the Civil Rights Act of 1964 to what the EEOC claimed were illegal actions under the Age Discrimination in Employment Act. While few areas are off limits to the EEOC, some types of claims present more risk or may be the focus of EEOC enforcement activity.
And last but not least, document everything. When dealing with employee hiring, discipline and termination, documentation is critical. Without proper record keeping, even routine EEOC investigations can quickly become expensive, embarrassing litigation.
While the EEOC is supposed to act fairly and reasonably, companies facing discrimination complaints can’t necessarily count on that approach. That means employers need to be prepared, understand what the EEOC has been capable of, educate managers and supervisors, and find the experts to help them if issues arise.
