Information for Employers
This page provides summary information that may be useful
to employers. Please note that only basic information is provided
here about each topic. This information should be supplemented with
information from other sources, including government agencies,
and attorneys. Equal employment opportunity laws, and other laws,
impose additional requirements on employers that are not discussed
here. Equal employment opportunity laws also cover employment
agencies, and labor organizations, but specialized information is not presented
here concerning those organizations.
If you receive a complaint of discrimination, the following
information may be helpful to you. These are generic ideas that
should be supplemented with other information, and tailored to
the particular situation. Consider that employment discrimination complaints
involve interpersonal and organizational issues, in addition to legal issues.
a. Gather Information - The matter may be assigned to someone
who is objective and not directly involved in the complaint, and
is knowledgeable of equal employment opportunity law. Create a
case file, and maintain it confidentially. Interview the complainant
about the the complaint. Invite the complainant to submit a written
statement describing the complaint, and relevant records and correspondence.
Advise the complainant to report any future acts of suspected
discrimination, or retaliation. When you learn the details of
the complaint, you may want to consult with an attorney, or other
professional, about the relevant law, and what information you
should obtain to evaluate the complaint.
Then conduct an investigation
of the complaint, using a qualified personnel officer or outside investigator.
Information developed during the investigation may not be
protected from discovery in litigation.
There is mixed case law about
whether the investigation may be protected from disclosure as
attorney work product if the investigation is conducted by an
attorney.
Prepare an investigation plan including the bases and issues
of the complaint; the relevant employment policies and
procedures; a listing
of relevant documents to obtain; and, a listing of witnesses to
interview. The bases of the
complaint indicate the type of the alleged discrimination, for example,
race (Black), sex or gender (female), and age (over 40). The issues
in the complaint are usually employment actions, like refusal to hire,
unfair wages, or termination of employment. The bases and issues should
be the focus of your investigation. The employer's policies and procedures
describe the employment processes that are relevant to the complaint. The
documents obtained during the investigation should pertain to the complainant,
and the other persons who are identified as comparisons. The listing of
witnesses may be obtained from talking to
the complainant, and then the alleged discriminatory manager. The
witnesses should be people who have direct knowledge of some aspect of the
facts in the case.
During the investigation, collect the material that
you will need to evaluate the complaint, including laws and regulations;
employment policies and procedures; and, personnel records. Notify
the alleged discriminatory official of the complaint, and allow
that person the opportunity to have input into the investigation.
Interview witnesses as appropriate, and prepare interview reports. Invite
the witnesses to sign the reports.
Inform the alleged discriminatory official, and witnesses, that the law
prohibits retaliation because
a person has filed a discrimination complaint, participated in a related
proceeding, or opposed what she reasonably thought was discrimination.
To the extent possible,
conduct the investigation in a quiet manner, and try to protect
the privacy interests of all persons involved. Keep the primary parties informed
generally of the status of the matter. Allow the complainant
and the alleged discriminatory official to have a final opportunity for
input before the investigation is concluded.
b. Evaluate the Evidence - After the investigation is completed, have a
qualified person evalute the evidence. Consider preparing a report
describing the evidence that was disclosed regarding the alleged
discrimination, and possibly analyzing the evidence to reach a
conclusion of whether unlawful discrimination occurred. Remember
that the investigation report may not be protected from disclosure
during litigation. Discrimination may be shown by: direct evidence
of discriminatory bias because of a protected basis; disparate treatment -
different
treatment of similarly-situated persons from different equal employment
opportunity groups; or an employment policy or practice that
has an adverse impact on a protected equal employment opportunity
group, and cannot be justified as job-related and consistent
with business necessity. Remember that disability discrimination
laws require the reasonable accommodation of persons who have
mental or physical disabilities. Depending on the experience
of your human resourses staff, you may want to consult with an attorney or other
qualified professional when evaluating the evidence. The purpose
of this evaluation is to determine whether a preponderance of the evidence
shows that unlawful discrimination
may have occurred. You should also be alert to whether the evidence
shows that the company's employment policies and procedures were
not followed, which may expose the employer to claims like wrongful
termination. Also be award of possible violations of other
employment laws.
c. Take Appropriate Action - If you conclude that unlawful
employment discrimination may have occurred, take immediate and
appropriate action to remedy it. The circumstances of the particular
case determine what is the appropriate remedial action. The corrective
action may include granting to the complainant an employment opportunity
that was unfairly denied, or rescinding an undeserved adverse
employment action. The legal requirement is to "make the
complainant whole" by placing her where she would have been
if the discrimination had not occurred. Appropriate corrective
action may also include disciplinary action against the person
responsible for the discrimination. Exercise caution in stating
your conclusions about the investigation, because an admission
may be used in litigation. If you conclude that discrimination
did not occur, you may inform the complainant of that decision,
and of any rights that she may have to appeal the conclusion.
If the investigation revealed that employment policies or procedures
were not followed, or that the employment action was unfair otherwise,
you may want to take corrective action even if you conclude that
unlawful discrimination did not occur.
Consider whether you want to attempt to resolve the matter with the
employee through mediation or some other form or alternative dispute
resolution. It is usually in the best
interests of employers to have employees who feel that they
have been treated fairly. You can use an outside mediator to seek
settlement of the discrimination complaint, or you can attempt resolution
yourself. Invite the complainant
to state what she seeks as a resolution, and consider that in formulating
a proposed resolution. Whenever possible, try to resolve the dispute within
your work environment to save the time, expense and disruption of handling a
complaint filed with a government agency or in court.
Facilitate early resolutions of complaints, when possible. Remember that
even if an employee has filed a discrimination complaint against your
organization you can still communicate with them about the matter,
unless they are represented by an attorney. If you reach a settlement
with the complainant, usually put it in writing in a letter of understanding,
or an agreement. In appropriate circumstances, you may have the
complainant sign a waiver of rights in return for the terms of the settlement.
You should probably consult with an attorney regarding waivers and releases.
The usual test of the effectiveness of releases is whether they were
knowing and voluntary. However, some laws have particular requirements,
like the Older Worker's Benefit Protection Act relevant to waivers of rights
under the Age Discrimination in Employment Act.
2. REALITY CHECK
When you handle complaints of discrimination from employees
or applicants, and evaluate information developed through investigations,
recognize that some employers have a limited perspective that prevents
them from viewing the evidence objectively. Remember that the evidence
may later be evaluated by independent government agencies, judges or
juries, and even the public. Try to be fair and balanced in your
evaluation of the evidence, and not be limited to a management perspective.
It may be helpful to
discuss the matters with attorneys or other professionals to obtain
objective input.
It is usually the best course of action to be resolution oriented.
If you resolve small problems
early you will more likely avoid big problems later. Employment discrimination
cases that are filed
in court commonly involve employment disputes that developed over a period of years.
During that time the employment relationship with the employee may have
become increasingly conflictive and unproductive. Tremendous amounts of time
and money and productivity are wasted by employers who do not make reasonable
efforts to resolve employment disputes with their employees.
Some employers may avoid settling discrimination
complaints because they feel it would be a sign of weakness, or
it may encourage other employees to complain. Consider that employers
may save substantial amounts of time and money, and also maintain
productive work environments and positive public images, by resolving
discrimination complaints fairly and promptly.
3. RECORD-KEEPING
Laws and regulations require employers to maintain employment
records. Failure to maintain employment records as required, or
intentionally destroying records relevant to current or anticipated
legal proceedings ("spoliation"), may result in negative
legal consequences for employers, including monetary penalties,
unfavorable evidentiary rulings, or legal inferences that an employer
did not maintain the records because they were adverse to the
employer's position in a case.
The U.S. Equal Employment Opportunity Commission requires
employers to maintain employment records for one year, and to
also retain records related to a charge of discrimination until
final disposition of the charge (29 CFR 1602.14). Medical records
are to be maintained confidentially and separate from personnel
records under the federal Americans With Disabilities Act (42
USC 12112(d)). The federal Age Discrimination in Employment Act
requires employers to maintain payroll records for three years
(29 CFR 1627.3). Private employers of 100 or more employees are required
to file an EEO-l reporting form with the federal Joint Reporting
Committee (29 CFR 1602.7). Federal government contractors
over $50,000 and fifty employees have to maintain written
affirmative action plans. Public employers and unions are required
to submit other reporting forms. (See contact numbers below to obtain the
reporting forms.) The federal Family and Medical Leave
Act, enforced by the U.S. Department of Labor, requires employers
of 50 or more employees to maintain compliance records for three
years, and to maintain medical records confidentially and separate
from personnel records (29 CFR 825.500). Check the websites of
the appropriate government agencies for more information about
record-keeping requirements.
Employers in California are required by the Fair Employment
and Housing Act to maintain employment records for two years (Cal.
Govt. Code 12946); by the California Family Rights Act to maintain
compliance records for two years (Cal. Govt. Code 12946); and,
by the California Labor Code to maintain employee wage records
for two years (Cal. Labor Code 1174). Records needed for preparation
of California Employer Information Reports (CEIR) are to be retained
for two years from the date the CEIR is prepared (2 Cal. Code
Regs 7287). Medical information is to be maintained separately
from other personnel records according to the California Confidentiality
of Medical Information Act (CC 56 - 56.37).
Employers in Oregon are required by state law to maintain payroll and
time-keeping records for at least two years (OAR 839-20-080).
4. POSTINGS
Laws and regulations require employers to post notices to
inform employees about equal employment opportunity. Failure to
post required notices may result in negative consequences for
employers, including monetary penalties, tolling of a statute
of limitations for employees to file charges, or an inference
that an employer did not take adequate steps to eliminate discrimination
and harassment.
The U.S. Equal Employment Opportunity Commission requires
employers with 15 or more employees to post a non-discrimination
notice (42 CFR 60-142).
The U.S. Department of Labor requires employers with 50 or
more employees to post a notice about the Family and Medical Leave
Act (29 CFR 825.300(b).
Employers with federal government contracts are required by
executive orders to display additional notices.
California law requires employers with 5 or more employees
to post a notice from the Department of Fair Employment and Housing
(DFEH 162), and a notice about pregnancy leave (2 Cal. Code Regs
7291.16), and the law requires employers with 50 or more employees
to post a notice about the California Family Rights Act (2 Cal.
Code Regs 7297.9).
California employers are also required to distribute
to employees a CDFEH information sheet about sexual harassment
(CFEHA, Government Code Section 12950).
Oregon employers are required to display an Oregon Family
Leave Act poster (OAR 839-009-0300), and additional postings provided
by the Oregon Bureau of Labor and Industries (ORS 659.490).
Contact the appropriate government agencies to request copies
of the required notices.
5. DISCOVERY OF EVIDENCE
Evidence that is created by a party in a discrimination case
may be discovered by the opposing party in litigation, and other
proceedings. This evidence may include items that a party may not
expect to be disclosed, like notes, calendars, email, and electronic
documents. The scope of discovery in litigation is broad, and includes
information that is likely to lead to the discovery of
admissible evidence. There are privileges that may protect some documents
and information from
disclosure, like communications with attorneys that are covered
by the attorney-client privilege.
Sometimes people try to create evidence by secretly tape
recording conversations with an opposing party. Note that in California
it is unlawful to record a confidential conversation
without the permission of all participants (Cal. Penal Code 632).
Oregon law prohibits recording an in-person conversation, unless
all participants are informed (ORS 165.540(1)(c)), and prohibits
recording a telephone or radio communication unless one participant
gives consent (ORS 165.540(1)(a), and 165.543(1)).
6. NON-RETALIATION
Equal employment opportunity laws provide that employers may
not retaliate because a person files a discrimination complaint;
participates, assists or testifies in an investigation or litigation;
or, opposes discriminatory employment practices (e.g., 42 USC
2000e-3; 29 USC 215(a)(3)). Complainants may pursue retaliation
complaints regardless of whether their original discrimination
complaints had legal merit. Alleged retaliation may concern issues
like discharge, demotion, harassment, or negative employment references.
Employers should be cautious in taking actions against persons
who file discrimination complaints, and persons who oppose discrimination,
so that the actions are not found to be retaliatory.
7. AGENCY CONTACTS
Government agencies have staff who will answer questions from
the public. These agencies are a good source of information about
the laws that they administer. Their staff are busy, so you may
have to continue to call until you reach someone who will answer
your question.
U.S. Equal Employment Opportunity Commission - Call 1-800-669-3362
to be connected with an organization that can provide printed material to you, and also
refer you to the nearest EEOC office. To obtain EEO-Reporting forms, call the EEOC
Surveys Division at telephone (202) 663-4968, or fax (202) 663-7130, or
contact the Joint Reporting Committee below.
U.S. Department of Labor, Wage and Hour Division - San Francisco
(415) 744-5088; Sacramento (916) 979-2045; Glendale (213) 894-6845;
San Diego (619) 557-6375; and, Portland, Oregon (503) 326-3052.
California Department of Fair Employment and Housing - Technical
Assistance - 1-800-884-1684.
Oregon Bureau of Labor and Industries, Civil Rights Division
- Technical Assistance - 1-503-731-4073.
Joint Reporting Committee to obtain federal EEO-Reporting forms:
telephone (757) 461-1213, or fax (757) 461-1739.
Some government agencies have web sites that you may reach
through the links on the Government Agencies and Programs page
of this web site.
The California Department of Fair Employment and Housing has a
web site at dfeh.ca.gov.
The Oregon Bureau of Labor and Industries, Civil
Rights Division, has a web site at
boli.state.or.us.
The EEOC's website is eeoc.gov.