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Employers Need to Remain Diligent Regarding Discrimination/Retaliation Investigations in 2018

On November 15, 2017, the Equal Employment Opportunity Commission ("EEOC") issued its annual performance and accountability report. In the report the EEOC states that:

"offices deployed new strategies to more efficiently prioritize charges with merit and more quickly resolved investigations once the agency had sufficient information. Together with improvements in the agency's digital systems, these strategies produced an increase in charge resolutions and a significant decrease in charge inventory. As a result, in fiscal year 2017 the EEOC resolved 99,109 charges and reduced the charge workload by 16.2 percent to 61,621, the lowest level of inventory in 10 years....In fiscal year 2017, the EEOC filed 184 merit lawsuits, including 124 suits on behalf of individuals, 30 non-systemic suits with multiple victims, and 30 systemic suits. This is more than double the number of suits filed in fiscal year 2016. Additionally, EEOC's legal staff resolved 109 merit lawsuits for a total monetary recovery of $42.4 million."

What does the EEOC yearly report mean to employers - it means that the EEOC is clearing more of its backlog cases and is filing more lawsuits on behalf of employees/ex-employees. The EEOC acting chair, Victoria Lipnic early last year said that the agency was going to address the large backlog in cases to "deal with the pending inventory" of cases and eluded to more litigation regarding cases that were found to have merit. The agency appears to be following Ms. Lipnic's vision in clearing cases and litigating cases on behalf of individuals.

What this all means for employers is that the EEOC is becoming more efficient in its resolution of cases and in its determination of whether it will litigate cases. Employers need to be diligent in their efforts to try to resolve issues before charges are filed.

Employers should follow the below guidelines:

1) Make sure your company has an updated discrimination/harassment/retaliation policy in place and follow it.

2) Train your company supervisors on what to do when a complaint is made or when they hear of a complaint. Supervisors need to be able to recognize when a potential issue is present and know what to do when a complaint is made - waiting is not an option - supervisors must know how to respond and who they can go and talk to if they have questions.

3) Make sure specific individuals, usually HR Managers or Directors are fully trained on how to conduct an investigation and that they are fully trained on documentation techniques/strategies.

4) Make sure that there is follow up with the person who first made the complaint so he/she knows that the company took the matter seriously and investigated the matter, no matter what the outcome.

With these policies and/or procedures in place, companies can considerably cut down on charges/complaints. It is much better for a company to resolve issues internally before charges are filed with the EEOC or state agencies.

For more information and/or questions regarding the above information, please contact Attorney Joseph H. Laverty at (563) 333-9102 or via email at [email protected].

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