Participants in Ward and Smith's Employment Law Symposium received updates on topics important to the EEOC, from jurisdictional issues and governmental agency partnerships to documentation procedures, pronoun use, and retaliation charges.
The discussion was led by Tom Colclough, former Deputy District Director of the Charlotte District Office of the U.S. Employment Opportunity Commission (EEOC) and now the EEOC's Director of Field Management Programs, and Glory Gervacio Suare, Director of the EEOC Raleigh Area Office, with moderation from Grant Osborne, a labor and employment attorney.
Over his 25 years with the EEOC, Colclough has investigated charges and complaints of discrimination, led high-performing teams, and served in various leadership positions. Currently, he plays a key role in fulfilling the agency's mission through strategic enforcement, management, and planning.
Gervacio's background includes serving as the director of the Honolulu office for the EEOC. Her career began as an enforcement investigator in 2001, and she continually provides outreach and educational assistance to various committees in her jurisdiction.
To initiate the discussion, Osborne asked about one of the most common misconceptions people have about the EEOC. "Sometimes people think the EEOC represents them," said Colclough, "but our job is to be totally unbiased."
The EEOC is tasked with investigating the laws that prohibit job discrimination. "Our goal is to gather the facts and make a recommendation based on the evidence," explained Gervacio. The EEOC is neutral in the investigation phase; it is only after a cause finding has been made that it shifts gears to act as more of a facilitator.
Referring to the attorneys in the room and participating online, Gervacio commented, "We are basically here to ensure that employees are working in a harassment-free, discrimination-free environment. So, I like to think we are partners in that regard."
Once a cause finding is issued, the EEOC evaluates whether the person was harmed. If the EEOC believes the claiming party was harmed, they will review how to get the person back into the position they would have been in prior to the discriminatory act. "Do we always get it right? No, sometimes we blow it completely," noted Colclough.
The fact is that EEOC directors have no obligation to reconsider any case. "But, if I receive a notification that says that we got it wrong, I will absolutely reconsider," added Colclough.
In that type of situation, Colclough typically provides the complaining party with a deadline to provide any new, relevant and material evidence to support their position. The takeaway is that any and all claims have to be demonstrated.
Jurisdiction of EEOC over Employers
Considering that the EEOC does not have jurisdiction over employers with fewer than 15 employees, how the employer calculates the total number can have tremendous implications. The timing of when the claim was filed is also important because if the claim were filed at a time when the employer did not have at least 15 employees, the EEOC would not be able to establish jurisdiction.
Even something that appears as simple as an employee headcount is more complex than it may seem. To illustrate the point, the panelists asked the audience to consider the example of a case involving a company with 14 employees that hires temporary staff to help during a busy time.
"Once they decide to recruit employees with a temp agency, now they're joint employers," advised Colclough. "A job board can even become an integrated enterprise."
If things go wrong, then it is not uncommon for one of the entities to claim that the other entity had nothing to do with them. To determine whether entities are actually separate, the EEOC considers who supervises the employee.
There are many instances where owners have decided to incorporate different aspects of a business as separate companies. If the EEOC determines that the separate entities are sharing employees, materials, and resources, then it is likely that the entities will be viewed as one company.
Information Sharing with other Departments
Employers who worry that the EEOC may share problematic information with other governmental agencies have a legitimate concern. Information gathered by the EEOC does not always stay with the EEOC since the agency has entered into a "memorandum of understanding" (MOU) with other agencies.
To shed light on the EEOC's partnership with the Department of Justice (DOJ), Colclough provided the example of a lawsuit filed in Wilson County, North Carolina, in which the agency issued a "cause" finding. "When the investigator called to discuss conciliation, [the employer] hung up. I would definitely advise against that," laughed Colclough.
Within minutes, the information was emailed to the DOJ. "What we were asking for was a very small amount, and what the DOJ asked for was a huge amount," Colclough said.
Part of the reason for the partnership is that the EEOC cannot litigate against state and local governmental employers; it can only investigate them. The EEOC also has an MOU with the Office of Federal Contract Compliance Programs (OFCCP).
"This helps us avoid duplicating our efforts," noted Colclough. "So, if a company's got a federal contract, then they fall in with the OFCCP, which is part of the Department of Labor," Osborne commented.
There are many inter-relationships, such as with the Department of Energy, but the MOUs limit the sharing of information. "Basically, it's like a referral process," explained Gervacio. This ensures that good governance is still possible if one particular agency doesn't cover a specific aspect of a case.
Transgender Discrimination and Expression
In June 2020, the U.S. Supreme Court rendered a decision stating that discrimination based on sexual orientation or gender identity is also discrimination based on sex, as prohibited by Title VII. "This is something the EEOC had been saying all along," said Colclough, "because the plain language of Title VII said discrimination is prohibited based on sex. It never said sexual orientation or transgender status. It said sex."
To help employees understand certain sensitivities of the LGBTQ+ community, Colclough recommended having cultural awareness training. He also encouraged employers to pay careful attention to employee requests that certain pronouns be used when referring to them.
"Aside from the legal issue, it is a moral imperative that we should have respectful and inclusive workplaces," noted Colclough. "The safest route to always use with a person is their name."
It can start to become harassment when a person has repeatedly asked to be referred to a certain way, and those requests are ignored. "Just being kind to employees goes a long way as far as risk management is concerned," interjected Osborne.
It is often said that what matters is not the truth, but the apparent truth, which often appears in documentation. "When I'm looking at any case, if there's no documentation, that means it didn't happen," Colclough explained.
Managers should always make sure that they are documenting employee issues. Even for Gervacio and Colclough, who also manage employees, they call an attorney when there is a question. "We investigate charges and complaints of discrimination," noted Colclough. "When it comes time to deal with one of our own employees, we don't do it; we call for help."
Another important thing to remember regarding the maintenance of documentation is that medical information should be kept separate, away from the individual's personnel file. A potential policy violation could result if medical records are not separated from personnel files.
It is also vital to preserve any and all documentation. "For one thing, it may actually be supportive in your case," said Gervacio.
Essentially, all the statutes about employment prohibit retaliation. Even for employers that do not engage in discrimination based on race, color, religion, sex, or disability, retaliation can be a problem.
"The number one basis of discrimination filed with the EEOC is retaliation," Colclough explained. This occurs when someone engages in a protected activity, such as complaining that they did not get a promotion based on their race or sex, and then the employer takes adverse action against them.
"The initial complaint could have been bogus, but if the employer took action based on that protected activity or complaint, then you're going to have a problem," noted Colclough. "The standard with retaliation is a low bar. All the individual has to show is they engaged in a protected activity, that the decision-maker was aware of it, and they were then subjected to an adverse employment decision."
"Of course, not all actions of employers are retaliatory. The EEOC will look at whether or not an action would have been taken regardless of whether a protected activity was involved. If a complaining party is being terminated for insubordination and others are as well, then retaliation may not be an issue. "We always look at whether there was a legitimate, non-discriminatory reason for an action," added Gervacio."
"Sometimes bad decisions can cost you a lot. One thing I always recommend is never to make decisions based on emotions," concluded Colclough.
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