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 may 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 information is not presented here
concerning those organizations.
CONTENT
1. IF AN EMPLOYEE OR APPLICANT COMPLAINS OF DISCRIMINATION
2. REALITY CHECK
3. RECORD-KEEPING
4. POSTINGS
5. BROAD DISCOVERY OF EVIDENCE
6. NON-RETALIATION
7. AGENCY CONTACTS
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1. IF AN EMPLOYEE OR APPLICANT COMPLAINS OF DISCRIMINATION
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. Employment
discrimination complaints involve human and organizational issues, in addition
to the law.
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.
Consider that the investigation may not be protected from discovery in litigation.
There is conflicting case law about whether the investigation may be protected
from disclosure as attorney work product if the investigation is conducted
by an attorney. 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. Inform the alleged discriminatory official, and witnesses,
of the non-retaliation requirements of law. To the extent possible, conduct
the investigation in a quiet manner, and try to protect the privacy rights
of all persons involved. Keep the parties informed generally of the status
of the matter, and allow the complainant and the alleged discriminatory
official a final opportunity for input before the investigation is concluded.
b. Evaluate the Evidence - After the investigation, 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; different treatment
of similarly-situated persons from diffenent equal employment opportunity
groups; or, that an employment policy or practice has an adverse impact
on a protected equal employment opportunity group, and it cannot be justified
as a business necessity. Disability laws may require the reasonable accommodation
of persons with mental or physical disabilities. Depending on the size and
experience of your 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 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, and be alert for possible
violations of other 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. It is usually in the best interests of an employer to have
employees who feel that they have been treated fairly. It may be helpful
to allow the complainant to state what she seeks as a remedy, and to consider
that in formulating a resolution. Whenever possible, try to resolve the
dispute within your work environment to save the time and expense of possible
litigation. Consider using an outside mediator or other professional person
to help you resolve the matter.
2. REALITY CHECK
When you handle complaints of discrimination from employees or applicants,
and evaluate information developed through investigations, consider that
some employers have a limited perspective that prevents them from viewing
evidence objectively. Remember that the evidence will be evaluated by independent
triers of fact if the complaints reach a government agency or litigation.
It may be helpful to discuss the matters with attorneys or other professionals
to obtain objective evaluations. 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.
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).
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). 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).
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).
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. BROAD 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, and electronic mail. There are privileges that may
protect some documents from disclosure, like communications with attorneys
that are covered by the attorney-client privilege.
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 the EEOC office nearest to you.
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.
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
Oregon Bureau of Labor and Industries, Civil Rights Division, has a new
web page that can be reached there. The California Department of Fair Employment
and Housing does not have a web site yet.