EEOC Complaints: Tips for Colorado Businesses

It happens to Colorado businesses every day. They think they are abiding by the law in their dealings with employees and prospective employees only to be hit with a complaint from the Equal Employment Opportunity Commission (EEOC). Maybe it was the person you didn’t hire because he refused to comply with company dress code standards or perhaps it was the employee the organization replaced because her family problems caused her to be absent frequently from a job critical to daily operations. Whatever the situation, you’ve found yourself in possession of an EEOC complaint and must now justify your actions.

When an employee files a charge with the EEOC, the commission will notify the employer of the charge within 10 days and request a timely response. You must respond within 180 days or the employee can ask the commission for the right to sue regardless of your response.

The commission is concerned with complaints alleging unfair treatment because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. This unfair treatment includes harassment, denial or workplace accommodation to the employee (due to religious beliefs or disability), and any retaliation that might occur because an employee has complained about discrimination or aided in an investigation of discrimination.

The EEOC used to file very few lawsuits against companies, but those days are gone. In recent years, the EEOC has become more aggressive in dealing with cases that it feels may have big dollar implications, especially those that may involve multiple employees, thereby giving evidence of a climate of discrimination. A look at the EEOC’s website and a review of its recently posted press releases support the existence of this new climate of aggressive action:

• 11/19/13: Tri-County Lexus must pay $50,000 to settle an EEOC religious discrimination lawsuit
• 11/21/13: La Rana Hawaii, LLC to pay $350,000 to settle EEOC sexual harassment lawsuit involving 13 employees
• 11/25/13: Mountain Farms pays $48,000 to settle an EEOC retaliation lawsuit

The EEOC is in the business of justifying its existence. It does this by bringing in big dollar settlements and establishing that problems are widespread within a company. To further understand the EEOC’s new aggressiveness, we need only look at the trend in its recent budget:

• 2011 EEOC Budget $366 million
• 2012 EEOC Budget $360 million
• 2013 EEOC Budget $344.2 million

Since the budgetary trend seems to include taking money away from the EEOC, the commission is in the mode of stepping things up and demonstrating its value. Don’t let your company suffer as a result.

Penalties Are Stiff for Proven Offenses

If your company is found guilty of committing an EEOC offense, it can be required to provide the following:

• Back pay
• Employment
• Promotion
• Reinstatement
• Reasonable accommodation

The stated goal is to make the harmed individual whole again. In addition, the liability can include attorney’s fees, expert witness expenses, and other court costs incurred by the complainant. Finally, there is also a possibility for the awarding of punitive damages.

Be prepared for the possibility of these punitive awards if your company has:

• 15-100 employees – you could pay up to $50,000
• 101-200 employees – you could pay up to $100,000
• 201-500 employees – you could pay up to $200,000
• 501 and more employees – you could pay up to $300,000

Clearly, the stakes are high when an EEOC complaint lands on your desk. You need to respond wisely and do everything according to best practices or you could have to live with the harsh outcome of your haste.

Seven things to do when you receive an EEOC complaint

#1. Make sure allegations fall within required timelines.

The law requires an employee to file a complaint within 180 days of an alleged incidence of discrimination. If the dates are off, the case is dead from the outset. A simple check of this one fact can save you a lot of heartache and hassle.

#2. Call your attorney ASAP.

Once you’ve determined the allegations were reported within the required timeframes, let your attorney know what the complaint alleges and discuss how he or she suggests you approach it. Your attorney is your staunch ally who has been through this situation many times before. The advice you get from this source can save you thousands of dollars. The labor law attorneys at Robinson & Henry, PC in Castle Rock are a good first call to make when an EEOC complaint arrives.

#3. Fight the urge to talk the issue out with the employee.

It’s easy to fall into this trap. You think you know this person well. You thought you had a good relationship. Your instinct is to go down the hall and have a heart-to-heart chat about their issues, get things out in the open, and try to get the employee to withdraw the complaint. Don’t do it. This can be construed as coercion or harassment, which will only hurt you in the long run.

#4. Quietly gather all background information needed for your response.

Get the personnel files, manager’s notes, and other background about the situation referenced in the complaint. Read the background over carefully and share it with your attorney. Look over records of any past similar cases in your company and make sure all your responses have been consistent.

#5. Meet with the involved manager(s) and employees.

Quietly and individually meet with the manager and/or employees involved in the allegations. Gather their insights and prepare to assemble them into your response. Insist on absolute confidentiality. There can be no talking about the complaint or any person involved in it for any reason.

#6. Prepare your EEOC response.

Rather than answering the questions asked, it is often advisable to offer up a position statement about the incident. Be sure this response includes some form of statement that allows you to supplement your response down the road if necessary. You don’t want to be tied strictly to this initial response if the situation does end up in court, yet you don’t want to tell more than is absolutely necessary at this stage.

Make sure your statement highlights your company’s antidiscrimination policies and how these policies are made known to employees. If you use charts or diagrams in your response, be sure to write a statement about what each of your diagram’s shows. Don’t leave your charts open to interpretation. Make sure your lawyer and key decision-makers in your company are involved in and approve the response before it is sent to the EEOC.

#7. Fight the urge to over communicate.

Some managers feel the need to not only defend their actions in the case under consideration but to also reveal every offense the employee has ever committed. This is a huge mistake that can come back to haunt you down the road. Tell only what you must and no more.

What happens next?

Once the EEOC receives your response, it will ultimately rule on whether it believes a violation has occurred. Even if the commission rules in your company’s favor, the employee still has the right to pursue a lawsuit against your company in a court of law. However, in such a situation, the EEOC’s ruling in your favor should be a powerful weapon in your defense.

If your company receives an EEOC complaint, call the experienced labor law attorneys at Robinson & Henry in Colorado. We will help you craft a response and defend your interests around the mediation table or, if need be, in a court of law. Call 303-688-0944 to schedule an assessment about your Colorado labor law concerns.