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Welcome to The JoyPowered® Workspace Podcast, where we talk about embracing joy in the workplace. I’m Susan White, owner of Susan Tinder White Consulting, an HR consulting practice. With me is my co-host and dear friend JoDee Curtis, owner of Purple Ink, a large HR consulting firm.
Our topic today is “You and the EEOC.” The U.S. Equal Employment Opportunity Commission is a federal agency that was established via the Civil Rights Act of 1964 to administer and enforce civil rights laws against workplace discrimination. The EEOC provides an overview on their website that explains that they are, and I quote, “responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age (that’s 40 or older), disability, or genetic information.” Most employers with at least 15 employees are covered by EEOC laws – 20 employees in age discrimination cases. Most labor unions and employment agencies are also covered. The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages and benefits. The EEOC is headquartered in Washington DC, and they have 53 regional offices. Many of our listeners are business leaders and HR professionals who want to make sure they stay on the right side of the EEOC. Sometimes, even when an employer thinks they’re doing everything right in their treatment of employees, an applicant or existing employee or former employee will file an EEOC charge alleging they were discriminated against. This can cause employers angst, fear, and defensiveness, none of which may be a good use of energy or usually helps to resolve the issue.
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We thought it would be helpful today to talk to an expert at the EEOC. It is my pleasure to introduce Gina Carrillo. Gina has been a trial attorney with the EEOC for six years, specializing in federal employment discrimination law. She has aided the agency in complex litigations and investigations in her time, as well as participation in educating the community. She previously was in private practice, but has always enjoyed employment law. She is barred in Arizona and California and currently resides in Phoenix. On a personal level, I’ve known Gina for almost four years, and I’ve watched her become a supermom to a very bright and darling two year old son, Orion. Gina, welcome. What does the EEOC do?
Well, the Equal Employment Opportunity Commission, it’s a federal agency that is charged with enforcing the federal employment discrimination laws. So its own agency, which is headed by five commissioners. So the federal discrimination laws that we enforce include Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Equal Pay Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act. So before an individual can file a lawsuit of employment discrimination, they have to file a charge with the EEOC or with their local civil rights agency. The EEOC processes investigates, and in some cases, litigates on the basis of these charges of discrimination.
And so your particular role, you get involved when it hits what part? Is it the litigation, or do you look at charges? Where do you fit in?
Actually, well, I do look at charges sometimes, but I mostly come in in the parts of litigation.
And Gina, what kinds of charges do you see most often?
So in the fiscal year of 2020, the EEOC received about 67,000 charges of discrimination nationwide. So I was gonna give a little bit of statistics here, so…to give an idea of how many…you know, where our charges come from, but because they can fall…when somebody files a charge of discrimination, it can fall under more than one allegation, the percentages will inevitably go over 100%. Under Title VII, about 32.7 charges – percent of charges – alleged discrimination based on race. 31.7% alleged discrimination based on sex, and those discrimination charges includes those with allegations of LGBT discrimination as well as pregnancy discrimination. And then there’s a lot, you know, a lot of other statutes that we do that encompass less of those charges. But the big one that we see more than anything else is gonna be retaliation. Retaliation is something that we see all the time. It’s prohibited under all of the statutes under our jurisdiction. Someone may be alleged to have been retaliated against when they opposed what they reasonably believe to be discrimination or participated in investigation of discrimination, and then they were subject to an adverse employment action, which can include discipline, it can include termination. So last year 55.8% of all the charges the EEOC saw included an alleged…an allegation of retaliation by the employer.
That blows me away. Yeah.
Me too! I wouldn’t have guessed that.
So, what are some novel issues that the EEOC is currently facing?
As I mentioned very briefly, LGBT issues is something that is now rising with the EEOC. Last year or the year before, the Supreme Court ruled that Title VII does cover sexual orientation, as well as other LGBT issues under Title VII. So now we’re able to look at those charges and evaluate our cases in those lights. Another big one we’ve seen, especially in this past year, is discrimination against Asian Americans and Pacific Islanders, especially with the Coronavirus, there’s been an uptick in discrimination against Asian Americans in the workplace. And then an issue that I personally find to be a growing and developing issue that oftentimes employers tend to struggle with is mental illness under the Americans with Disabilities Act. Oftentimes, employers will have somebody who comes to them asking for an accommodation for some particular mental illness, whether it be depression or PTSD or other issues, that they’re not always well equipped to handle and don’t necessarily know how to educate themselves or their employees on how to approach these certain individuals who also need to work and be in the workplace.
Yeah, very interesting. And when there is a complaint of discrimination, what kind of responses are you looking for from employers?
It’s the same thing that kind of an internal versus external complaints, like, how they should be handled needs to be similarly. So what should your reaction be, as the employer? Well, a well-documented, thorough investigation of a complaint – any internal complaint – is always a great first step on how to approach approach things. Because really, what, in my opinion, what employers can do to protect themselves is take any necessary actions to discipline the person responsible for the discrimination and to prevent further discrimination from happening in your workplace. So some example areas where I see employers get into trouble is, they only provide one person for someone to complain to about discrimination. And sometimes that person is, in fact, the discriminator and nobody knows – or the employee doesn’t know – where else necessarily to go to. They don’t provide any training. That happens oftentimes with smaller employers. They think they don’t have the funds or the time or the resources to do it, but then no one knows what they’re doing…or no one knows what they’re doing is wrong. And a lack of follow through on investigation. It’s amazing to me how many times I see somebody says, “Yes, we investigated it, and it looked like there was a problem.” And then that’s it.
Oh my gosh. They don’t do anything about it. Oh dear.
Exactly. It’s…so it involves a lot of active steps on the part of the employer. So sometimes when an employer receives a charge of discrimination, they’re asked to write a position statement and submit that to the EEOC in response to that charge of discrimination. Typically, either in-house counsel will write that response or retained counsel, and they’ll attach exhibits to that position statement. So this is the employer’s chance to show that the basis of the charge is either wrong, or they did…took all the necessary steps when they received this complaint of discrimination. So if you’re working with legal in your place of work, it’s really just important to provide them everything you can that helps you face this charge of discrimination and show that you did the right thing in this case or that it’s a baseless charge.
So once the employer, you know, responds to a position statement, then the EEOC…. Tell me what happens. What’s the next step? They then review it, and then they have decisions to make?
What is the journey from that point until it’s resolved, if it goes positively or negatively for the employer?
Right. So, you know, I mean, there’s a lot of different steps that can go through the process. If the position statement demonstrates that there actually isn’t a charge here or…or there isn’t a basis for the charge here, or that the employer did the right thing, that charge could be dropped right then. But if there’s still questions to be answered, oftentimes we’ll…they’ll go through the investigative process, where the investigators will send out requests for information, sometimes conduct interviews of the employer’s employees to determine whether there’s cause to believe that there has been a violation of one of the federally protected laws. So, that cause standard is really whether it is more likely than not that there has been a violation. And if so, it goes all the way through that process to the cause determination, and it can end up in the what we call the conciliation process, where they try to resolve the complaint before it comes to the legal department, before it comes to me and all that process has failed. And the conciliation is to try to settle the matter, in an easier way to say it.
And is it normally done by mediators, where you have the employer and the employee, and then the EEOC kind of mediates that discussion to see if they can get a conciliation?
There’s actually two facets to that. So, we have our own mediation department that provides a mediation service, really, usually shortly after the charge is filed, before there’s an investigation, and a lot of employers and employees really like that process, and it’s very good way of resolving the matter and getting people to the forefront right away to talk about their…their issues and hopefully resolve the matter. And we have our own set of mediators who do that process. So that’s one of the ways a charge can go, as well, after a position statement, not just through the investigation. If it goes through the whole investigation, that conciliation process, that’s done with the investigators, who are the ones who try to settle and resolve the matter at that point.
I got it. And if all else fails, and the EEOC feels as though, you know, the organization is not doing what they need to do, then it comes to you in litigation. And then you go to federal court. Depending on where of the 53 locations the EEOC is located, do you go to that local federal court?
Right. And so our offices – we don’t have an office in every city or every state, so we will…for example, the Phoenix office, which is where I work, has offices in Albuquerque, and Denver, as well, but we also cover Utah and Wyoming. So I’ve traveled to Wyoming and Utah for cases before in the past, as well. So we’ll go to several different courts.
Interesting, as an employer, I know that at times, the organizations I’ve worked at, when we would get in a charge, a EEOC charge, and we would, you know, provide our position statement and then sometimes the EEOC would come back and say, you know, they didn’t feel there was grounds, but the individual always would get a notice of right to sue. So even though the individual, the EEOC is not necessarily supporting the claim, the person still has the right to go to federal court and sue us. Is that true for every step of the way, the individual can always decide to go to federal court and sue the employer, if the EEOC is choosing not to do it with them?
Exactly. So once they…as soon as the EEOC decides that it’s no longer investigating the charge or going to have a part of the charge, they’ll issue that notice of right to sue letter to the employee, and they can choose to go retain their own counsel and file a complaint in federal court. Sometimes, too, a individual can request that notice of right to sue right off the bat if they want to and they don’t want to go through the whole EEOC process, but…yeah.
Interesting, gosh, I would think as an employee or former employee or an applicant, whoever’s filing, I’d want the federal government to take it on with me. But some people don’t, so I get that.
Yeah. So Gina, what advice do you have for employers to avoid receiving charges in the first place?
So, I mean, that’s a tough question, because, you know, you can’t really stop anyone from filing a charge of discrimination. As a matter of fact, if you try to, that also would constitute retaliation. But, you know, I think from what I’ve seen in talking to lots of charging parties, and I think what’s more important than anything, is for people who feel that they’ve been wronged, whether they’re…they have a basis in..in the law or not, they want to be heard, and they want to see real consequences if, in fact, they’ve been discriminated against. So really, I think the best thing that an employer can do in these cases is, you know, if you receive a charge, not to be emotional about it, but, you know, logical about it. It’s hard not to be emotional when you’re accused, maybe, of race discrimination or sex discrimination. It’s a very serious accusation. But if you’re taking the necessary steps to hear what your employees are having to say, if you’re using the resources that you have to make sure that these things aren’t happening in the workplace, that’s really the best way you can stop receiving charges, is by being proactive. I think, you know, even if an employer has the resources, and they feel like everything’s going well, the ship’s running fine, you know, do you…can you do some self-evaluation? For example, like, what are your hiring practices? Like, are you noticing that your company is starting to exclude older applicants and not bringing on people who are…who are older who are applying and trying to come into the workplace? And ask yourself why that’s happening. Is it something internally you can do? Does your leadership team lack diversity? When you look around, what can you change in recruiting or leadership training to change that facet of your organization? So I think that self-evaluation and dedicated resources is really the best way to to avoid receiving charges.
Yeah, that makes sense. So Gina, any other advice you have for our listeners?
As I kind of said, educate. You know, educate. Resources. Especially for smaller employers, I feel like, oftentimes, what I see is employers really just want to do the right thing, but they haven’t put the resources where they need to and made this area a priority for them. A lot of the violations I see, and especially the ones that I’ve litigated, really just come from a lack of training and a lack of knowledge and letting old stereotypes just kind of run wild in the workplace, especially, you know, for example, against pregnant women, just assuming what they can or cannot do in the workplace. I know that employers are balancing multitudes of fires every day with every asset of their business. But, you know, and I know I’m biased, saying this, but I think when employers spend time and resources educating their staff on what discrimination is, how to recognize it, and how to safely report it, employees are just generally going to have higher morale in the workplace and be more functional and efficient.
Gina, JoDee and I agree with you 100%. If you want a JoyPowered® workspace, people have to understand what discrimination is and how to avoid it. And you’re preaching to the choir. I bet you are to our listeners, as well.
Well, and don’t you think a lot of the…especially smaller businesses think that, “I don’t have the resources to, I don’t have the money to invest in this.” But yet, they’re spending the money on the other end, right? Why not do it upfront and do it right and create this JoyPowered® workspace and be a place where people want to work?
So true. Well, Gina, thank you so much for coming today. It’s really been helpful. It’s very kind of you and the EEOC to spend the time with us and our listeners today.
Absolutely. Thank you.
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Susan, our listener question today comes from a listener in Arizona who reached out to us. He recently started a new job. When he completed his onboarding paperwork online and he came to a section asking him to select his gender and race, he inserted “male” and “prefers not to specify” for the race question. Within a week, he got a call from the recruiter who was part of the hiring process, who asked him to go back in and select a race. He wondered if this was legal and, whether it is or not, why would the employer push on this in today’s racially sensitive world.
I really like this question. JoDee and I are not lawyers, and as we always say, we don’t give legal opinions. So my guess is that this company either is an employer with at least 100 employees or a government contractor or subcontractor who have 50 or more employees and contracts of at least $50,000 a year, so they need to file an EEO-1 report annually. In an EEO-1, you report on the racial or ethnic and gender composition of your workforce by specific job categories. Consequently, organizations ask their employees to self-identify. If an employee declines to self-identify, you are still responsible for reporting race and gender information, which I get it, it’s problematic. Some employers have told us that they rely on observer identification or other available information that they can find, which honestly makes me personally uncomfortable, labeling individuals based on what we…we think we’re seeing. I think it invites inaccuracies. So although we think that’s the practicality what companies are doing, we would love to hear from any of our listeners, what is it that you do and if you’ve faced this issue before.
Time for in the news. McLean and Company recently released their 2021 HR Trends report. They interviewed 850 business professionals across the globe in September and October of 2020. They found the top five priorities of organizations at that time were…
Number one, recruiting. Not surprised about that one.
No. Number two, development of leaders.
Number three, controlling labor costs and maximizing labor spend.
Number four, diversity, equity and inclusion. It reached the top five for the very first time.
That’s surprising. And number five, providing a great employee experience.
I think all of those are really smart for companies to focus on. But what fell out of the top five, which honestly was surprising to me, given the pandemic backstory of 2020, was supporting change. So I think it’s probably a really close number six, that we in HR need to be really focusing on helping our organizations support change that they’re going through.
Absolutely. Well, thanks for joining us today and make it a JoyPowered® day.
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