A couple of weeks ago I wrote about an employer’s obligations to conduct effective investigations into harassment claims.  I was typing at computerside tracked since that post, and promised to write about how employers should conduct the investigations.  This Friday’s Five lists five action items employers should utilize when conducting harassment investigations:

1. Selecting the investigator

Employers should take time to train an in-house person who can conduct harassment investigations.  This person, usually someone from Human Resources (but it does not need to be) should have additional experience and training about how to investigate these claims.  First, the person needs to be able to conduct appropriate investigations to limit the liability to the company.  Second, the person’s experience and training will likely be closely examined, if not challenged by opposing counsel if the case develops into litigation.  Therefore, someone with experience and who is well credentialed is preferred.

2. Investigation must be free of any appearance of influence or bias

The investigator must not have any personal involvement with any of the parties who are a part of the investigation.  To avoid any appearance of undue influence, the investigator must not be subject to any control or supervisory control from the alleged harasser.  This means that for smaller companies, or in cases where the owner or president of the company is alleged to have harassed someone, it is recommended that an outside third-party that is independent from the company be hired to conduct the investigation.

3. Ask the right questions

The EEOC provides the following examples of questions to ask during a sexual harassment investigation:

Questions to Ask the Complainant:

  • Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?
  • How did you react? What response did you make when the incident(s) occurred or afterwards?
  • How did the harassment affect you? Has your job been affected in any way?
  • Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment?
  • Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • How would you like to see the situation resolved?
  • Do you know of any other relevant information?

Questions to Ask the Alleged Harasser:

  • What is your response to the allegations?
  • If the harasser claims that the allegations are false, ask why the complainant might lie.
  • Are there any persons who have relevant information?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • Do you know of any other relevant information?

Questions to Ask Third Parties:

  • What did you see or hear?
  • When did this occur? Describe the alleged harasser’s behavior toward the complainant and toward others in the workplace.
  • What did the complainant tell you?
  • When did s/he tell you this?
  • Do you know of any other relevant information?
  • Are there other persons who have relevant information?

4. Make credibility assessments

The EEOC again provides some guidance on the factors to use when determining which witnesses are more credible:

  • Inherent plausibility: Is the testimony believable on its face? Does it make sense?
  • Demeanor: Did the person seem to be telling the truth or lying?
  • Motive to falsify: Did the person have a reason to lie?
  • Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
  • Past record: Did the alleged harasser have a history of similar behavior in the past?

None of the above factors are determinative as to credibility. For example, the fact that there are no eye-witnesses to the alleged harassment by no means necessarily defeats the complainant’s credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again.

5. Make a final determination

After making credibility determinations and evaluating the facts, management of the company must make a determination about whether or not the harassment occurred.  The parties should be informed of the determination.  Even if the employer determines that harassment did not occur, the EEOC takes the position that the employer should take steps such as preventative training and continued monitoring.  For example, even though the underlying harassment may not have occurred, a supervisor could still be held liable for retaliating against the employee who filed the harassment complaint.  Therefore, it is important for employers to inform the parties involved of the outcome, unacceptable behavior as a result of the determination, and to ensure ongoing compliance with the company’s findings and legal obligations.

 

Happy Friday.  Big data has entered into the employment context.  The EEOC is proposing changing the EEO-1 report to require employers to report about an employee’s earnings based on their race, gender and ethnicity.  Here are five things employers should know about the EEOC’s proposal:

1.      Proposal to add wage data about employees to EEO-1 reporting.

Currently, employers must collect EEO-1 data from any pay period occurring in the months of July through September of the current survey year. The EEO-1 must be filed by September 30th of the same year.  The EEOC also proposes that beginning in 2017, all employers will be required to submit the proposed EEO-1 report electronically.  The sample form can be found here.

The EEOC’s proposal would require employers to report the number of employees by their sex, race and ethnicity according to the employee’s W-2 income.  The proposal would require this information to be reported for certain wage bands.  The EEOC wants this data in order to “compute within-job-category variation, across-job-category variation, and overall variation, which would support the EEOC’s ability to discern potential discrimination while preserving confidentiality” (more about the EEOC’s claim about confidentiality below).

The EEOC believes that the W-2 income reporting is the most accurate and easiest data for employers to use in preparing the report:

W-2 gross income includes wages, salaries, fees, commissions, tips, taxable fringe benefits, and elective deferrals. Amounts withheld for taxes, including but not limited to income tax, Social Security, and Medicare taxes, are considered “received” and are included as gross income of the given year they are withheld.  The W-2 encompasses all earned income, including supplemental pay components such as overtime pay, shift differentials, and nonproduction bonuses (e.g., year-end bonuses, hiring and referral bonuses, and profit-sharing cash bonuses).  Nonproduction bonuses account for over 11 percent of cash compensation for management, business, and financial operations occupations, while shift differentials are a significant component of compensation for healthcare workers.

2.      Total hours worked must be reported

Employers will also have to report the total number of hours worked by the employees included in each EEO-1 pay band cell.  The EEOC states that this “data will allow analysis of pay differences while considering aggregate variations in hours. The total hours worked also will permit an analysis that accounts for periods when the employees were not employed, thus reflecting part-time work.”  The EEOC is not sure about how to have employers report hours worked for exempt/salary employees, and is seeking comments from employers about this issue.

3.      EEOC proposes to use software to determine “statistics of interest”

According to the EEOC:

The EEOC and OFCCP plan to develop a software tool that will allow their investigators to conduct an initial analysis by looking at W-2 pay distribution within a single firm or establishment, and by comparing the firm’s or establishment’s data to aggregate industry or metropolitan-area data.  This application would highlight statistics of interest.

This raises the question though about how the software will exactly make the determination what constitutes “statistics of interest?”  It obviously does not take into account the wide range of factors that determine an employee’s rate of pay: experience, education, seniority with the company, management skill, etc….  There may be additional factors that skew the statistics as well, such as geographic and local issues about the workforce.  I’m afraid that this type of statistical calculation can place employers in the situation that they will be presumed guilty if the EEOC’s software flags a concern based on the EEO-1 report, and then the employer will have the burden to justify its pay scale.

4.      Confidentiality issues

The EEOC attempts to belie any confidentiality concerns in its proposal, but many issues are unaddressed.  Some of the confidentiality issues that need to be addressed:

  1. Employees’ privacy rights are a concern.  The employees’ information about race, gender and income is shared with yet another governmental agency.  In addition, the EEOC is also in charge with enforcing discrimination based on religion.  The proposal does not seek information about the employee’s religion as this time, but will the EEOC seek this information in the future to assist in religious discrimination cases?  Towards this end, will the EEOC also ask the owner or president of the organization to disclose their religion in order to determine if she discriminates against other religions in the hiring or promotion process?
  2. Competitor’s access to wage information.  Is it possible for the data collected on the report to be released by a Freedom of Information Act request to be used by competing firms?  Could the information be used in setting salaries and wages to in hopes to poach employees?
  3. Attorneys may be able to subpoena these filings in current lawsuits for free discovery.  In addition, could attorneys seek the information from the EEOC to conduct their own analysis regarding pay distribution in order to find cases?

5.      Employers may comment about the proposal

Want to share your comments about the proposed regulation with the EEOC?  The EEOC established a relatively easy way to post a comment on its website here.  I actually have to hand it to the EEOC in making the comment process very easy.  Comments are due by April 1, 2016.

The EEOC recently disclosed its fiscal year 2015 performance report.  The report is a good reminder to employers of the issues that they may likely face EEOC scrutiny.  Here are five key statistics employers should pay attention to:

1.     EEOC obtained more than $525 million in discrimination suits. 

Of this amount, the parties settled disputes for $356.6 million, and obtained $65.3 million through litigation.

2.     “Systemic” discrimination investigations and litigation.

The EEOC resolved 268 “systemic investigations” of discrimination claims prior to litigation, resulting in more than $33.5 million in settlements.  Systemic discrimination is defined by the EEOC as discrimination that “involves a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.”  Some examples of “systemic” discrimination provided by the EEOC are discriminatory barriers in recruitment and hiring, discriminatory restricted access to management trainee programs and to high level jobs, and exclusion of qualified women from traditionally male dominated fields of work.  A list of recent cases provided on the EEOC’s website illustrates some examples: Outback Steakhouse settles $19 million suit for sex bias claims by women in a “glass ceiling” suit; Albertson’s settles $8.9 million suit alleging job bias based on race, color, and national origin.

The agency did not disclose how much it obtained in litigation, but it disclosed that it resolved 26 systemic cases.  Six of those included at least 50 plaintiffs, and 13 that included at least 20 plaintiffs.

3.      EEOC’s training programs. 

The agency claims to have reached 336,855 people through providing 3,700 educational, training and outreach evetns.  The agency’s Training Institute trained over 12,000 people at 140 events that “focused on the agency’s Strategic Enforcement Plan (SEP) priorities, including small businesses, vulnerable workers, underserved geographic areas and communities….”

4.     Number of charges filed with EEOC remained relatively unchanged from 2014. 

The EEOC received 89,385 in FY 2015.  This is slightly up from the 88,778 charges received by the agency in FY 2014.  This is down from the number of charges filed in 2013 (93,727 charges).

In 2015, the agency resolved 44% of its conciliations, which are mediations conducted by the EEOC to resolve employment disputes.

5.     EEOC litigation efforts.

The agency filed 142 lawsuits alleging discrimination for FY 2015.  Of the lawsuits, 100 were individual lawsuits and 42 were cases “involving multiple victims or discriminatory policies (versus discriminatory treatment), of which 16 were systemic suits.”  During 2015, the agency resolved 155 lawsuits alleging discrimination, and has 218 active cases.  Of these active cases, 48 (22%) alleged systemic discrimination and 40 (18%) were “multiple-victim cases.”

 

California employers must remember that the EEOC is a federal agency responsible for enforcing Federal discrimination laws.  California employers also need to comply with California discrimination laws, which are enforced through California’s Department of Fair Employment and Housing (DFEH).  Wage complaints are handled through the federal Department of Labor or California’s Labor Commissioner.