Earlier this month, Waller Lansden welcomed two high-ranking officials of the United States Equal Employment Opportunity Commission who spoke to our Labor and Employment practice, along with some of our Labor and Employment clients and friends, at our monthly group meeting. Faye Williams, Regional Attorney for Region 9, and Shirley Richardson, Deputy Director for Enforcement for the Memphis District Office, were kind enough to share their firsthand insight into current EEOC priorities and initiatives. It was too valuable not to share.

From both an investigation/enforcement perspective and a litigation perspective, Ms. Richardson and Ms. Williams, respectively, provided advice on what employers should do (and what they should not do) to put themselves in favorable positions with the EEOC. Many of their comments were helpful reminders that we have shared with our clients over the years through training, seminars, and bulletins. Many were ideas and approaches that stem largely from the EEOC's nationwide Systemic Initiative and Task Force and the somewhat related but more specific E-RACE (Eradicating Racism And Colorism from Employment) Initiative. From their discussions, we have distilled three points of focus that proactive employers should review and consider to minimize their legal risk as it relates to the EEOC and the laws it enforces:

1. Examine hiring and promotion practices. Ms. Richardson and Ms. Williams each emphasized heavily the impact and implications of the E-RACE and systemic initiatives. The EEOC is closely scrutinizing charges that appear to signal a widespread policy or practice of discrimination, whether overt or subtle. Such systemic concerns are often identifiable in hiring and promotional practices. As Ms. Richardson and Ms. Williams shared, there are concrete ways in which an employer can reduce the likelihood of systemic problems in these areas:

  1. Post jobs - Word of mouth hiring and promotions can perpetuate discrimination, whether intentionally or not.
  2. Review workforce demographics (an EEO-1 report is a ready-made source). Appropriate diversity at all levels suggests a lack of any systemic discrimination.
  3. Do not exclude from recruitment efforts schools or geographic areas that might result in the disproportionate exclusion of certain racial groups.

2. Implement and enforce anti-discrimination/anti-harassment policies. One of the first things the EEOC looks at in reviewing a charge is whether there is a well-defined anti-discrimination and/or anti-harassment policy in place, with reporting procedures and explicit protection from retaliation. Just having such a policy, however, is not enough. The EEOC looks carefully at whether the policy is adequately enforced. Such enforcement depends upon a series of actions. Train managers and supervisors on the policy. Investigate complaints thoroughly. In the end, if a violation is found, do something. The EEOC typically will defer to an employer's reasonable judgment on what the consequence should be, but doing nothing is not a viable option. Whatever the outcome, ensure that there is no retaliation; don't turn a weak discrimination or harassment complaint into a strong retaliation lawsuit.

3. Work with, not against, the EEOC. The EEOC need not be viewed as an adversary, although unfortunately many employers and attorneys automatically adopt an adversarial stance when dealing with the EEOC. The EEOC is a fact-finding and enforcement body that, as Ms. Williams made clear, works for employers as well as employees. Cooperation by an employer in an investigation engenders a similar approach from the EEOC, and it makes an employer's experience easier and less costly. This is not to say that an employer or its attorney should never disagree with an EEOC investigator or attorney, but rather that it should dispute only the issues that are worth disputing and disagree without being disagreeable.

For any company with a significant number of employees, the EEOC is a critically important agency with which to earn a favorable reputation. By understanding the EEOC's objectives and approach and implementing proactive steps such as those described above, employers can build a positive relationship with the EEOC that can lead to positive results in the EEOC process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.