Yikes! I just got my first discrimination complaint from the EEOC or a state agency. What should I do?
Stay calm, and use it to improve your business. Learn more in this "two cup" special.
Got humans working at your company? Then you probably already experience conflict. When this conflict rises to the level of perceived discrimination or retaliation, or when employees or former employees are frustrated and think that they have to go outside the company for help, you may receive a complaint from a government agency. In my view, a complaint, like an exit interview, gives great insights into how to make the company better.
First off, take a deep breath. Any complaint is an opportunity to ensure the company is behaving as you believe it does, and make improvements where needed to enhance the employee experience.
Discrimination and retaliation complaints may be filed with a state agency or with the Equal Employment Opportunity Commission (EEOC). They are relatively common occurrences in most businesses after they reach a certain number of employees (in some states, the number could be as low as two). In order to protect the rights of employees as fully as possible, the process of filing a complaint is straightforward for the aggrieved party, and does not even require that individual to hire a lawyer. In many states, these administrative remedies must be exhausted before litigation can be pursued. Thus, complaints can often stem from misunderstandings in the workplace, or an individual employee’s negative experience with another individual, and in reality may not even be about the company itself. Conversely, insights gained from a complaint are invaluable for continuous improvement, ensuring that management development programs are working, and that processes and policies are understood and followed.
Do not take the complaint personally.
Many companies feel attacked when they receive an EEOC or agency complaint. They circle the wagons and go into defensive mode, which can inhibit their ability to resolve an issue effectively. Often, administrative complaints alleging discrimination or retaliation stem from hurt feelings, misunderstandings about process, or ineffective coaching and performance programs that leave employees confused about what is expected of them or what they need to do to improve or to be promoted. This is not to say that discrimination and retaliation do not occur, because unfortunately they do. A complaint is also your opportunity to validate what you “believe” happens in the organization and ensure that your “no tolerance” policy is really working to ensure a fair and equitable work environment. Try to view the complaint as the employee helping the company get better and it will go a long way toward a positive resolution.
Assign a single “project manager,” and prepare a plan for investigation (including data collection/management).
Parse the complaint phrase by phrase. Often, the complaint content has not been drafted by an attorney. It may be disjointed, and may reflect the emotion that the aggrieved employee is feeling. By parsing phrase by phrase and listing each component and comment separately, you can ensure that your preparation for mediation and the subsequent position statement (if needed) address all relevant matters, and your investigation stays on course-both in terms of hard and soft costs, as well as time and scope. Once you have made a list of each component of the complaint, including relevant keywords that you could use in an internal email search, consider the following:
WHERE:
Document repository: Where will you store any documents and notes? Do you have a repository that will allow you to categorize items by their respective portion of the complaint? Will this be something you can share with outside counsel if litigation arises? Is it organized in a way to save as much staff capacity as possible? Who needs access?
Where will the interviews take place? How can you ensure that individuals being interviewed are comfortable and not so visible that it starts unnecessary rumors?
WHO:
Who is being accused of bad acts? Will their level in the organization affect the team’s ability to be independent or require Board level reporting?
Which current and past employees might have relevant information? Either because they are specifically named in the complaint, or might have first hand knowledge of the situation or issues.
Who will do the interviews?
Who will attend mediation on behalf of the company?
Who will write the position statement? Who needs to approve it?
Who will notify the insurance carrier (usually the Employment Practices Liability or EPLI policy) and when?
DESIGN YOUR INVESTIGATION OUTLINE:
WHAT:
What are the specific facts alleged? What facts does the company have related to these topics?
What questions do you need to ask related to each phrase in the complaint? What do you need to know to fully understand the situation?
WHY:
Is there any historical perspective? Other similar situations or issues with the same members of management, etc.?
WHEN:
What is the timeframe in question?
What is the best order to approach the relevant parties? Namely, will one have information that may be needed for a subsequent interview, etc?
HOW:
How will the team address each aspect of the complaint? Interviews? Email search? Retrieving certain relevant documents (like policies, employee reviews, etc)?
How does the team plan to consistently communicate the company’s commitment to confidentiality without making any assurances about ongoing confidentiality that you cannot honor?
And finally, consider the following: If everything in the allegation were true, are there other precautions, notifications, or regulatory issues that will need to be addressed? What sorts of information will you need in those instances, and can it be collected as part of this process? Would you prefer to start with outside counsel due to the complexity of the matters, the potential for issues down the road (especially if the complaint involves top level leadership), concerns about discoverability of the records being created, or the lack of experience or capacity internally?
Investigate fully and independently + use findings as an opportunity to refine training programs and policy communications.
See the plan above. Execute on said plan. It is a good idea to have all interviews done by the same person, with a second person present to take notes. Ensure the interviewers and secondary note-takers are either experienced with interviews and investigations, or have the foundational communication and listening skills to perform this critical role. Make sure their daily work has been cleared as much as possible to allow them to minimize the duration of the investigation. Finally, the project manager should review content (interview notes, documents) as it is provided to identify additional items needed or questions to be asked in subsequent interviews. Do not stop the investigation process until you have completed your plan, even if it looks like the complaint is unfounded, because a company’s best position starts with “we investigated fully.”
And how do you motivate the response team who probably do not want to handle the investigation or deal with the outcomes? Ensure that they understand how important their role is for improving the company, as well as ensuring that the response is independent.
Finally, any time there is a complaint, it provides a great nudge to proactively communicate policy and remind all employees that discrimination and retaliation will not be tolerated. Policies that stagnate and are not regularly revisited and communicated will not achieve their goals or enhance the company’s value or reputation.
Prepare your narrative for mediation and be ahead of the game for a final position statement.
Most agency complaint processes require either a mediation, or a position statement, with some offering an opportunity for both. The most important preparation, beyond a full investigation of the allegations to date, is to craft a compelling narrative of your company’s position. This narrative often includes your corporate brand story, your commitment to employees, and follows with an empathetic response to the allegations based on demonstrable facts. Consider how to present your messages in a way that someone not familiar with the company can easily follow them, and ensure that your messages offer an alternative perspective that could clarify the situation.
Mediation is an opportunity for transparent conversation that could alleviate the situation. Worst case, it’s free discovery if litigation follows.
The mediation itself is usually a half day or less, and allows the parties (if they consent) to come together to attempt to find a resolution before the full investigation commences. Even if your company has a policy of not settling in these situations, or does not believe the complaint has merit, attending the mediation and showing compassion often goes a long way in resolving the matter. Sometimes, an employee just wants to be “heard” by the company because they did not agree with their particular manager’s opinion. Other times, they may have relevant information that might shock you–but will allow you to see issues that might otherwise be hidden. The latter, while hard to hear, will allow you to drive improvements within the company or take other action to ensure that equity in the organization is protected.
Some mediators will give specific time expectations for an introduction, and follow with questions. Others allow a longer presentation by the company, often in the presence of the individual who has lodged the complaint. Either way, having a good understanding of the assigned mediator’s expectations, and a plan for delivering the key messages within their preferred framework, will be critical to a positive outcome. In addition, by preparing for the mediation with an eye toward your overall narrative and the individual components of the complaint, you will be ahead of the game if the time comes to finalize a position statement.
Either way, attending mediation is an extension of your brand as an employer and offers the opportunity to resolve conflict in a way that balances the interests of the employee with the interests of the company. Even if the mediation is ultimately unsuccessful, you will likely have a better picture of the highlights of the employee’s case, which will assist you in drafting the final position statement and in any litigation that might potentially follow.
What if mediation is unsuccessful?
If mediation is unsuccessful, or in certain circumstances where a position statement is requested while waiting for a mediation to be scheduled, the company creates its formal written response to the complaint, otherwise known as a position statement.
Anyone can prepare a position statement. It is my preferred method to use an outline style, where each phrase in the complaint is a heading, and the company responds to each in an effectively communicated story. The drafting should focus on providing a strong narrative, and be scrubbed of legal language and industry jargon. This is not the time to dust off the big words you learned in law school or all the acronyms that you use within the four walls of the company. If what the employee said is untrue, provide the information that expressly proves the counter position in a short and consumable way. If the employee’s perspective is different from the company’s, show the alternative view with compassion. If the company is taking precautions to protect employees (either through policies, training, 360 feedback, surveys, etc), share that as well, again focusing on the key messages without delivering a policy treatise. Finally, include exhibits in a traceable manner that is easy for someone who does not know your company to follow and understand.
In short, employee complaints are always stressful, but with the right mindset and a plan of action, you can ensure that the company’s interests are protected (including improving the organization) and that employees are treated equitably and with respect. The worst thing to do is ignore or minimize the complaint, as these issues never get better with age. The EEOC, especially if you’ve had multiple complaints or the investigators see a lack of response from your company, has the power to launch its own investigation and levy fines against your organization. Thus, take these matters seriously and ensure that your organization responds with speed and integrity.
#HumanResources #Employment #EmploymentEquity #Investigation #EmploymentLaw
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