United States: EEOC Representative Provides Perspective On Sexual Harassment And Discrimination

Last Updated: December 10 2019
Article by Grant B. Osborne

How does the Equal Employment Opportunity Commission evaluate discrimination complaints?

What trends is it seeing in the cases it's reviewing? And how do investigators assess claims involving sexual harassment and equal pay violations?

Attendees at Ward and Smith's 2019 Employment Law Symposium got to hear about these issues from one of the EEOC's senior-most administrators in North Carolina.

Thomas Colclough, deputy district director of the EEOC's Charlotte office, joined Ward and Smith's Jerry Sayre, an employment law counselor and litigator who advises employers, for a question-and-answer session on stage.

The Charlotte district office fields employment discrimination complaints across North Carolina, as well as a large part of Virginia and South Carolina.

Sayre noted that the EEOC seems to have gotten more willing, in recent years, to dismiss charges before employers are even asked to respond.

"What is the Commission looking for?" Sayre asked. "Is there some sort of a threshold foundation that they're looking for?" 

Colclough said the agency is always trying to assess whether, if they investigate, they are likely to find a violation. 

"The No. 1 question we should always ask is, 'Is it more likely than not?'" he said. "Are we going to find the violation here, based on the years of experience that we have and based on the story that the individual may give us at the intake phase?"

Sayre asked Colclough what he was seeing on the sexual harassment front, particularly given the rise of the #MeToo movement.

"Going into fiscal 2018, I thought, based on the #MeToo movement, that harassment cases would go down," Colclough said, anticipating that employers were getting smarter about harassment. But they haven't.

"Because of the #MeToo movement, people feel more empowered to speak about the situations they may have encountered," he said.

It's become apparent, Colclough said, that the kind of harassment training that many employers conduct isn't working well enough.

According to Colclough, the key question for employers to consider is:  "How do we put respect back in the workplace?"

"The other thing that I think is important that employers should consider is emotional intelligence training," Colclough said. "Sometimes, people just aren't aware of their behavior or the things that come out of their mouth."

Employers should also be active in monitoring for and taking action on inappropriate behavior.

"If you get a complaint and you act on a complaint by taking immediate and appropriate action by investigating it, that's the best way to resolve these," he said.

One of the most challenging situations an employer can face is when a senior executive — sometimes the CEO or owner of a company — faces a harassment complaint.

Colclough said that if he were the CEO of a company, "I need to have some way that all employees have an avenue to complain, even if it's about me."

That may mean designating an outside attorney, for example, as someone empowered to hear complaints and conduct investigations.

Another big issue for employers to be wary of, Sayre noted, is pay inequity.

"To me, pay discrimination is kind of the sleeping giant," Sayre said. "The monetary exposure likely to arise can be extraordinary."

He noted one case from a Fourth Circuit federal court that held a woman being paid less than just one male counterpart had a prima facie pay discrimination claim. Given this precedent, Sayre cautioned that if there are nine men and one woman doing similar jobs and the woman earns less than just one of her male colleagues (even if she's the second-highest paid in the group), she would have a valid pay discrimination claim.

In the Charlotte district, Colclough said, when investigators look at a pay discrimination claim, they're required to analyze it using four potential defenses: seniority, merit, incentive, and a reasonable factor other than sex.

The reasonable factor other than sex, Sayre said, "is often the key question, because often these cases boil down to that."

Colclough said there are a number of potential reasonable factors than sex, including — sometimes — the fact that one employer had a lower salary in a previous role.

But he also noted that he doesn't like the "he negotiated, she didn't" argument that some companies make, because he doesn't know the context of the negotiation or whether sex was a factor in that.

But he is more likely to view other factors, such as the education and skills someone brings to the job, as reasonable factors. A candidate's relationships might also be a permitted factor.

"I think one of the most important things in business, in my opinion, is building relationships," he said. "If you're really connected to that community ... that might be why you get the job versus somebody else."

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions