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FORD & HARRISON LLP
Preventing an EEOC
Systemic Investigation
best practices
A longstanding female employee—who did not
situation
complain internally—files gender discrimination
charges with the Equal Employment Opportunity
Commission (EEOC) alleging that she has been repeatedly passed over
for promotion in favor of less qualified men. Regardless of the merit
of her charge, Human Resources (HR) is concerned about a possible
EEOC investigation which would extend beyond the individual charging
party’s situation.
in-house counsel
challenge
The EEOC has recently stepped up its
commitment to systemic discrimination
investigations and litigation. Therefore, it’s
inside counsel’s task to work with HR to resolve the issue quickly
and head off an EEOC investigation before it expands into a pattern
and practice lawsuit.
approach
adopted
In this scenario, which is based on an actual
case, inside counsel and HR began the
investigation by meeting with the department
head to get a detailed explanation as to why the department head
selected the male employee. The department’s statistical evidence was
also examined—including direct hires, promotions, resignations,
terminations and exit interviews—for any evidence of discrimination.
Even though the department head’s reasoning was deemed solid,
the department’s past performance was troubling. Other female
employees had suggested during exit interviews that a previous
department head—not the current manager—had not given women
quality assignments.
In this case, legal and HR opted to establish a new job opportunity
which would represent a promotion for the charging party. HR worked
with the new department head—who was assured the solution was
not based on the belief that he had done anything wrong—to assess
the woman’s skills. At the same time, legal prepared a joint letter that
would go to the EEOC from HR and the charging party.
HR then met with the charging party and told her the situation had been
reviewed. Without discussing the merits of her charge, HR emphasized
her value as an employee and explained the last thing either wanted
was a dispute.
A new position with more responsibility and higher salary was offered.
In addition, HR offered, at the company’s expense, a training seminar
on supervisory skills and advised her that, because of the company’s
commitment to equal opportunity, an EEO training program for all
managers and supervisors within the department had been organized.
implementation steps
• If a discrimination allegation occurs, conduct internal interviews
and take immediate action.
• To prevent allegations and/or problematic EEOC systemic
investigations in the future, establish a system to regularly monitor
statistical employment evidence, including direct hires, promotions,
resignations and terminations, for evidence of discrimination.
• Establish a similar process to monitor and follow up on exit
interview results.
measuring
success
Short term: The female employee was happy
with the promotion opportunity and that
HR had moved so quickly and positively on
her complaint. She signed the letter for the EEOC, which then
dismissed the charge without ever conducting any investigation or
even obtaining a position statement. Hence, the company avoided
what easily could have turned into a pattern type investigation.
Long term: The training did take place and the turnover rate for
female employees in that department was reduced dramatically.
future issues
to consider
In light of the EEOC’s renewed focus on systemic
investigations and litigation, inside counsel must
ensure that statistical employment evidence and exit
interview results are being monitored regularly to
uncover and resolve potential discrimination
problems early on.
Richard S. Cohen is managing partner in the
Phoenix office of Ford & Harrison LLP. His
primary practice area is employment law, with
an emphasis on employment discrimination.
Richard is Peer Review Rated. He can be
reached at rcohen@fordharrison.com.
JULY 2007
09