People & Culture

This article is an excerpt from a full blog on Insperity.com. Read the complete post here. 

A common threat faced by employers is an Equal Employment Opportunity Commission (EEOC) complaint. 

The top five EEOC complaints reported nationally are related to: 

• Retaliation 
• Disability 
• Race 
• Sex (including pregnancy) 
• Age

They carry many risks for your business: 

• Unwanted stress  
• Lengthy, time-consuming, and complex investigations 
• Unfavorable PR 
• High legal bills 
• An equally high settlement amount if a complaint is upheld 
• Negative impact on morale and culture 
• Onerous, ongoing audits and monitoring of your company 

Here’s how you can prevent EEOC complaints against your company, along with guidance for what your company should do when faced with charges of discrimination. 

Top EEOC Mistakes to Avoid 

Not having a written equal employment opportunity (EEO) policy in your employee handbook. 

A written, up-to-date EEO policy demonstrates that anti-discrimination is a priority in your workplace, thus making it easier to defend your company in the event of a complaint. 

An EEO policy should include: 

• Your company’s commitment to compliance with federal, state, and local anti-discrimination laws 
• Description of unacceptable behaviors 
• Consequences of violating the policy 
• The process for submitting complaints both internally and with the EEOC 
• The process for investigating complaints 

New employees should acknowledge – with their signature – receiving the policy as part of their onboarding. 

The EEO policy should also be applied to everyone consistently, from leadership on down. 

Not training managers well and often enough.

Managers are incredibly important in the EEOC complaint process. They: 

• Receive and process discrimination complaints 
• Put preventative measures into practice 
• Model desired behaviors and promote a discrimination-free workplace 
• Escalate issues up the organizational ladder 

To the last point, when an employee informs a manager of discrimination, the EEOC views it as informing the company. 

Managers must undergo regular training on anti-discrimination and the complaint process to underscore that this is a company priority. The ability to demonstrate this may be crucial to your defense against a complaint. 

Not applying workplace policies consistently.

Treat all similarly situated employees the same. By this, we mean employees who are on the same team or who share similar roles or seniority. 

If there is an instance in which it is acceptable to treat some employees differently, this must be outlined in your EEO policy. 

Not having comprehensive files on each employee.

According to the EEOC, an event that is not documented did not happen. During the complaint process, you must have good employee records as evidence to back up your actions and your side of the story. 

During an employee’s time with your company, you should document in writing: 

• Performance reviews
• Training
• Performance issues
• Communication issues 
• Behavioral issues 
• Violation of company policies 
• Meetings with HR, including disciplinary discussions 

These records support your decisions related to:  

• Appointments to special projects
• Promotions
• Demotions
• Termination 
• Project assignments 
• Changes in salary 
• Discipline 

Document verbal discussions and be sure to have third-party witnesses, such as an HR professional, present for more difficult conversations. 

When an employee is separated from your company, the EEOC requires that you maintain personnel records for one year. 

Asking problematic interview questions.

There are certain types of interview questions you should never ask because they can lead an applicant to believe they’re being targeted or that they weren’t hired because of personal characteristics protected against discrimination by federal law. Even if you think you’re just making small talk, don’t ask questions that could be misconstrued as trying to identify an interviewee’s age, marital status, familial status, religion, or ethnicity, for example. 

Also, ensure that job descriptions are free from discriminatory language. 

Communicating with former employees post-termination or post-EEOC complaint.

If you engage with an employee who has been terminated or submitted a complaint, you could expose your company to liability. This is true even if the former employee initiates contact. You don’t want to accidentally say anything that could be misunderstood. 

Additionally, don’t provide recommendations on LinkedIn – even if you’re just trying to be nice and help. This could appear contradictory to the EEOC and invite questions about why the employee was terminated. 

Instead, refer all communication from former employees to your HR department. If the former employee has submitted a complaint to the EEOC, all communication between your company and the complainant needs to go through the agency. 

Not adhering to the EEOC’s process.

The EEOC will inform you about the nature of any complaint against your company and will provide options for how you can respond. 

If you choose not to engage in mediation or settlement, the EEOC will request an explanation for why your business took the employment action at the root of the complaint, including: 

• A statement of position
• Copies of relevant workplace policies 
• The employee’s personnel file  
• Witness contact information 

This is your opportunity to present supporting evidence that your company did not violate the law. It also shows a good-faith effort to cooperate with the investigation. 

To avoid risking an unfavorable outcome, follow the EEOC’s instructions carefully. 

Behaving in a retaliatory way toward complainants.

Do not act in a way that could be construed as negative toward an employee who submitted a complaint. This includes: 

• Ignoring them 
• Passing them over for promotions or assignments 
• Revoking former privileges 

Remember – retaliation is among the most common EEOC complaints. 

Learn more about best practices associated with EEOC complaints – and the consequences of the EEOC deciding against your company in favor of an employee – by reading the full blog here. If you’d like to learn more about how Insperity can help your business, contact Matt Sternberg or Gina Carvana.