Another Record Enforcement Year for the EEOC.

The Equal Employment Opportunity Commission issued its 2012 Performance and Accountable Report on Monday. The report reflected yet another record year of enforcement efforts by the EEOC, with employers being required to pay more than $365M in monetary relief secured through the EEOC’s administrative enforcement efforts. The EEOC’s litigation efforts resulted in another $44M recovered against employers. Enforcement efforts are only set to increase over the next four years, as the EEOC’s 2012-2016 strategic plan seeks to target companies suspected of committing “systematic discrimination” in the workplace. Adding to the cards stacked against employers is the record number of bias charges filed by employees over the past two years. With an increase in the number of bias charges filed with the EEOC and the agency’s increased enforcement efforts, now more than ever, employers must be proactive to avoid liability. Here are five steps employers should take now:

1. Update your Equal Employment Opportunity Policy. Your employee handbook must include an EEO policy that prohibits discrimination based on any characteristic protected by federal or state law. The policy should also include a complaint procedure and prohibition against retaliation.

2. Scrap the Sexual Harassment Policy. Since 1997, the number of sexual harassment charges filed with the EEOC has decreased 26%, while the number of harassment charges filed on a basis other than gender has increased 63%. Employers must have a Workplace Harassment policy in place that prohibits harassment on the basis of any characteristic protected by federal or state law, provides a complaint procedure, and prohibits retaliation.

3. Update your Anti-Retaliation Policy. There have been several developments in the law of retaliation over the past few years that have significantly expanded the definition and scope of the law’s protection of employees from retaliation. Retaliation is no longer limited to adverse employment actions (e.g., discipline or firing), but rather consists of any conduct directed at an employee because the employee opposed a discriminatory practice or participated in an investigation, proceeding or hearing related to a complaint of discrimination. Your employee handbook should be updated accordingly and a complaint procedure added for allegations of retaliation.

4. Train Employees on their Rights and Responsibilities. The policies contained in your employee handbook are only as valuable as the paper they are printed on if employees are not alerted to their presence. Employees need to understand their obligation to report discrimination, and supervisors need to understand their obligations to detect and appropriately respond to discrimination concerns in the workplace. Indeed, an employer’s liability can hinge on the actions (or inaction) of supervisors. For these reasons, training employees on their rights and responsibilities is essential to protecting your business.

5. Promptly Investigate Claims of Discrimination, Harassment, and Retaliation. Once a complaint of harassment is made, employers must act promptly to investigate the claim and to take remedial action as necessary. The investigation must be started immediately (i.e., it cannot wait until your HR Manager returns from vacation), must be thorough, and must be completed in a timely manner. The investigatory findings are then used to determine whether a violation of policy has occurred. Where violations are found, employers must implement remedial measures such as discipline, termination, and/or additional training to ensure the discriminatory practice ends immediately.

By implementing the foregoing steps, employers can avoid the occurrence of discrimination in the workplace and, in the event a claim arises, be poised to successfully defend against it.

The information contained in this post is not intended to be a substitute for professional counseling or advice. If you have any questions or would like to discuss a specific employment law or Human Resources matter, please contact Sarah Delaney Vero at 518.477.3452 or


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