Liability Protection Best Practices

©SHRM 2008

Equal Employment Opportunity Commission – EEOC

• Created by Title VII of the 1964 Civil Right Act.

• Charged with enforcement and administration of discrimination law.

• Complaints must be filed with EEOC within 180 days of the incident.

©SHRM 2008

EEOC Investigation Process

• Charge is filed with the EEOC.• EEOC asks for a no-fault settlement from the

employer.• If no settlement, the investigation is conducted

by the EEOC.• EEOC issues a statement of “probable cause” or

“no probable cause”.• Attempt at conciliation with employer.• Recommendation for or against litigation.

©SHRM 2008

How Do They Decide What to Litigate?

• In determining litigation, the EEOC considers:> The number of people affected by the alleged

practice.> The amount of money involved.> Possible other charges against the same employer.> The type of charge involved.

©SHRM 2008

Sorry, No Litigation by the EEOC

• EEOC sends a “right to sue” notice to the charging party.

• The claimant can file a civil suit without action by the EEOC.

• Most cases are settled outside of litigation through alternative dispute resolution.

©SHRM 2008

Minimizing Liability

• ORGANIZATIONS MUST BE PROACTIVE.> Prevent discrimination.> Create an affirmative defense.

©SHRM 2008

What Can HR Do?

• Must have an anti-discrimination and sexual harassment policy.> Policy must define harassment.> Statement of no tolerance.> Communicate and train employees on the policy.

©SHRM 2008

What Can HR Do?

• Establish a reporting procedure.> Create more than one “route” for reporting: HR

department, supervisor, other management personnel.

> Have both genders represented in your reporting route

©SHRM 2008

What Can HR Do?

• Train employees in discrimination and sexual harassment.> Once per year, disseminate policy and conduct

training.> Train supervisors and managers separate from

employees.• Managers must know how to deal with

complaints.• Managers must understand their responsibility.

©SHRM 2008

What Can HR Do?

• Monitor your workplace.

• HR must know what is going on!

• Keep lines of communication open.

• Conduct prompt, careful and impartial investigations.

• Take swift and appropriate corrective action when necessary.

©SHRM 2008

What Can HR Do?

• Employee handbook:> Make sure the handbook is approved by legal

counsel.> Include an employment-at-will clause.> Have the handbook acknowledged by employee

signature.> Revise regularly and keep the handbook up-to-date.

©SHRM 2008

What Can HR Do?

• Create a culture of ethics in your organization:> Get buy-in from upper management.> Establish an ethics policy.> Train employees in ethical decision-making.> Provide a “safe place” for employees to report

unethical behavior.> Enforce sanctions against unethical behavior.