The Equal Employment Opportunity Commission (EEOC) enforces federal employment discrimination laws, ranging from Title VII to the Americans with Disabilities Act. When an employee believes she has been terminated, disciplined, or otherwise treated adversely by her employer because of reasons including her sex, race, disability status, age, or religion, she may contact the EEOC and file a charge against her employer. A charge is simply a complaint that prompts the EEOC to investigate. If it finds the employer discriminated, it can fine the employer, require it to make certain changes, or bring suit against it. Sometimes the EEOC decides not to pursue a claim.
The EEOC had a busy 2018. It resolved 90,558 charges, recovered $505 million in fines, made 519,000 calls, and sent 34,600 emails. Complaints can range from per se violations of law (i.e. employer fires an employee because she is a woman) to disparate impact allegations (i.e. a strength test unfairly discriminates against female employees). Sexual harassment charges and investigations significantly increased in 2018. The EEOC litigated 50% more sexual harassment cases, and sexual harassment charges increased by 12%. Charges from food service and retail now have three times more filings than white collar jobs.
Facing an EEOC charge and investigation can be costly and reputation-marring. To avoid one, employers should take careful steps when terminating employees. First, be straightforward. Tell the employee why you are terminating her. Second, have multiple people present to prevent a “he said, she said” situation. Third, document performance issues to demonstrate the need to terminate an employee. Fourth, carefully train managers in what they can and cannot do in treating employees. The basic message to communicate is that treating employees differently is discrimination. Taking these steps and always acting carefully and transparently prevents discrimination and leads to a healthier, better workplace.
*Kelly Holden leads DBL Law’s Employment and Labor Practice Group. She is a past chair of Northern Kentucky SHRM and presents regularly to that chapter. She and fellow DBL Law partner Bill Brammell presented EEOC – From A To Z at the 2019 KYSHRM Conference. Patrick Reagan contributed to this article.