How to Be Ready When the EEOC Charges In, Part II: 5 Harassment Prevention Principles to Highlight in a Response
Author: Michael J. Nader (Sacramento)
Published Date: October 11, 2017
In part one, of this blog series on responding to charges brought by the Equal Employment Opportunity Commission (EEOC), I described some situations that pose an increased risk of a systemic harassment investigation by the EEOC in response to an individual harassment charge. Usually, when responding to the EEOC, employers can provide a precise and limited response that includes only the most essential supporting documents. But when the risk of a systemic investigation arises, an employer’s response may need to be more comprehensive to show that the individual’s charge lacks merit and that the company has an effective harassment prevention program in place.
Along with the initial steps to be taken upon receipt of the charge, which are detailed in part one, it is also important to confirm whether mediation is an option. While the EEOC routinely offers to mediate charges, the Commission generally will not mediate a systemic harassment matter. So, when an employer representative calls an investigator to request a two-week extension in the response due date, it may also want to inquire as to mediation. If mediation is not offered, then (in an always-courteous tone) ask for the reason and make a formal request for mediation. If the request is denied, that is an indication that a broader investigation may be underway.
Even if the charging party wants to mediate a settlement, the EEOC might still refuse and proceed with a widespread investigation. According to a recent decision from the Seventh Circuit Court of Appeals, “while a valid charge is a requirement for beginning an EEOC investigation, nothing in Title VII supports a ruling that the EEOC’s authority is then limited by the actions of the charging individual.” In that decision, the charging party had received a right to sue letter and brought a civil suit that was dismissed on summary judgment. According to the court, even after the dismissal, the EEOC retained the authority to continue its investigation of the charge. As the “master of its case,” the EEOC can forge ahead in the public interest, with or without the charging party’s interest. This decision provides more reason for employers to fully respond to the EEOC with a defense of the company’s policies and practices and not to count on an early resolution of all issues through the charging party.
According to the EEOC, there are five “core principles” in a harassment prevention program:
Committed and engaged leadership
Consistent and demonstrated accountability
Strong and comprehensive harassment policies
Trusted and accessible complaint procedures
Regular, interactive training tailored to the audience and the organization
An employer may want to highlight the presence of these five principles in its harassment prevention program in a charge response.
1. Committed and Engaged Leadership
The EEOC emphasizes that a respectful culture must be supported at the highest levels and that this support should be clearly communicated to employees at routine trainings. According to the commission’s harassment report, “the strongest expression of support is for a senior leader to open the training session and attend the entire training session.” If an employer implements this practice, it may want to highlight this fact in its charge response. Similarly, if there were a training slide with a statement of support from the CEO or other senior executives, or a memo from senior management expressing support for the company’s anti-harassment policy, an employer could include it in the response and show that it was distributed.
2. Consistent and Demonstrated Accountability
In August, Ford Motor Company resolved a systemic harassment investigation by the EEOC with a $10.1 million settlement agreement. The agreement required Ford to revise its performance objectives to ensure management accountability on harassment prevention. If a manager fails to handle a harassment matter properly, that will be a factor that influences the manager’s performance review. Some examples of conduct that could negatively affect a manager’s performance review may include when a manager tries to address a harassment complaint directly and fails to report it to human resources (HR) for review and potential investigation or when a manager observes misconduct, or hears a rumor about offensive conduct, and fails to report it to HR. These are the types of failures that, according to the EEOC, should directly impact that manager’s performance rating and compensation. The EEOC also required Ford to continue a policy of prohibiting the promotion of salaried employees for a period of two years following a violation of the anti-harassment policy.
In a charge response, especially if the allegations claim that a manager failed to report a complaint to HR or ignored or tried to excuse the behavior, employers may want to explain that managers receive routine training that clearly instructs them to report all harassment matters to HR. If there are training slides, policies, or other materials that instruct managers in these important duties and they were delivered to the manager or supervisor mentioned in the allegations, an employer may want to include them in its charge response to show the company’s commitment to management accountability.
3. Strong and Comprehensive Harassment Policies
In systemic cases, the EEOC is concerned about a chilling effect in the workplace where the company’s failure to respond and correct harassment deters further complaints. EEOC guidelines emphasize that anti-harassment policies must clearly explain prohibited conduct and provide a flexible complaint procedure that enables employees to report a complaint to HR rather than to their direct managers or supervisors. An employer can include its anti-harassment policy in its charge response and highlight provisions that instruct employees to always report concerns to HR. If an 800 number is also a reporting option, an employer may want to mention that as well to show the company’s commitment to facilitating employee reports. According to the EEOC, an anti-harassment policy should also assure employees of confidentiality to the extent possible; a prompt, thorough, and impartial investigation; and appropriate corrective action as needed based on the findings of the investigation, as well as state that retaliation is strictly prohibited.
4. Trusted and Accessible Complaint Procedures
The EEOC’s agreement with Ford also required the company to complete investigation training for all labor relations and salaried human resources personnel. If a company has provided such training, it can mention that in its charge response. Employers can also show that their programs have designated HR professionals who specialize in handling complaints and are trained to conduct prompt, thorough, and fair investigations. If those individuals have received investigation training from a professional organization, an employer can add that fact to its complaint response.
5. Regular, Interactive Training Tailored to the Audience and the Organization
The Ford-EEOC agreement also requires anti-harassment and mutual respect training for all employees, hourly as well as salaried. The training is required at new hire orientations as well as on a biannual basis. These trainings must include a distribution of the written anti-harassment policy and signed acknowledgement forms to ensure receipt.
Therefore, when responding to a charge, an employer may want to show (if applicable) that the charging party received anti-harassment training at orientation and on a routine basis, as well as include sign-in sheets (redacting the names of other employees) and signed acknowledgement forms for the anti-harassment policies received and for each training session attended. The employer may also include specific training slides that (a) emphasize a zero tolerance policy on harassment, (b) instruct the employee to report to HR all instances of offensive and unwelcome conduct, and (c) strictly prohibit retaliation.
When there is a risk of a systemic investigation, an employer can use the opportunity of the charge response to highlight the company’s harassment prevention program and show that its policies and practices reflect the EEOC’s harassment prevention program core principles.
Michael Nader is a shareholder in the firm’s Sacramento office. A highly skilled litigator, advisor, counselor, and trainer, Mr. Nader represents employers in employment-related litigation in federal and state courts, and before administrative agencies. He focuses his practice on wage and hour class action litigation, and on defending wrongful termination, discrimination, harassment, and retaliation claims. Mr. Nader regularly provides practical legal advice for employers on how to best...