. . . so y’all better straighten up.
You probably know by now that the Biden Administration fired Sharon Fast Gustafson, the Trump-appointed General Counsel of the Equal Employment Opportunity Commission, whose term was not set to expire until 2023.
Ms. Gustafson was asked (nicely) to submit her resignation, and she said no. At that point, the Administration nicely escorted her to the door. And then nicely shoved her out and slammed the door behind her. Figuratively speaking.
As I’ve written before, the EEOC will have a Republican majority until July 2022, when the term of former Chair Janet Dhillon expires. But that doesn’t mean the Biden Administration is going to twiddle its thumbs until then.
All of which has inspired me to do an update of a blog post I wrote in 2011, based on an article that I wrote even longer ago (when we were still doing things on paper, if you can believe that).
This is one of those topics that never grows old — and especially as we get a new administration that may not be quite as employer-friendly as the previous one. What do employers do to shoot themselves in the foot with the EEOC? Here are my top picks:
No. 9: They underestimate. Many employers and their counsel underestimate the competence and professionalism of the folks at the EEOC. They assume that employers can’t get a fair shake, or perhaps that the investigator can’t identify the issues relevant to the charge or evidence that supports the employer’s position. In my experience, this is unfair to the EEOC and to most of the investigators with whom I deal. Whether or not they have any personal “leanings,” most of the investigators I’ve dealt with do seek the truth and can recognize it when the charging party doesn’t have a case.
No. 8: They don’t expect to litigate. The EEOC has not been too terribly litigious during the Trump years, but employers should brace themselves for change. Although litigation will still be the exception (we hope), employers should expect a Democratic-majority EEOC to be willing to go to court when class relief is possible, or when one of the EEOC’s “hot” issues is at stake. What those hot issues might be remains to be seen, but my guesses are systemic discrimination based on race; discrimination based on sexual orientation or gender identity; harassment based on race, sex (including LGBT status), or national origin; disparate impact; and retaliation. I also wonder, as the Baby Boomers age, whether we will see — er — a boom in age discrimination litigation initiated by the EEOC. So far we haven’t, but there are still plenty of Boomers still in the workforce. (The youngest Boomers are in their mid- to late 50s, and they aren’t getting any younger.)
No. 7: They retaliate. None of my clients do this, but a few bad apple employers do continue to retaliate against employees for engaging in activity protected by the federal anti-discrimination laws. For a number of years now, the EEOC has had more retaliation charges than any other kind.
And, while we’re talking about retaliation, I must share with you a plaintiff’s lawyer “entrapment” trick that we see frequently. A current employee has a gripe against her employer, and goes to see a lawyer. The lawyer sends a threatening letter to the employer, identifying the employee by name and making all kinds of allegations, some of which are exaggerated and some of which may not even be true.
Why would the employee’s lawyer do such a thing? Doesn’t he realize that he’s just going to get his client in trouble at work?
Of course he does! That’s exactly the plan! If a current employee has a weak case of discrimination, the lawyer tries to beef it up. The easiest way to do that is to send a letter with all the necessary information in the hopes that it will enrage (or panic) the employer, who will then fire the employee. Then the lawyer will have an airtight case of retaliation, even if the underlying claim was so-so. Employers, if this ever happens to you — and I hope that it doesn’t — don’t take the bait.
By continuing to be fair with your employee after you get that demand letter, you will (1) avoid a retaliation claim and (2) have the satisfaction of breaking that devious lawyer’s heart. He-he.
No. 6: They don’t mediate. If you read this blog very often, you know that I am a fan of the EEOC’s mediation program. First, it’s free. (Or, you pre-paid for it when you paid your taxes.) Second, the mediators are generally fair to employers and sophisticated. Third, the settlement amounts are often quite reasonable, and often lower than what you might have to pay to settle the case at a later stage. If, as we expect, the EEOC becomes less employer-friendly in the next few years, that’s all the more reason to try to resolve your charges at the earliest opportunity.
No. 5: They’re late. Yes, I understand that you’ve had a charge sitting over at your local EEOC office for two years and nobody has even bothered to give you a phone call. That’s annoying, but it isn’t your problem — it’s the agency’s. But are you submitting your position statement and responding to requests for information on time? If you can’t meet the original deadlines, are you making timely requests for extensions? And, no more than two? Are you at least meeting the extended deadlines? If you can’t answer “Yes” to all of these questions, you are probably getting a bad reputation at the EEOC, and you don’t want that.
No. 4: They prevaricate. None of my clients do this, and I’m sure that none of you do, but a some employers are less than honest with the EEOC. I’m not talking about putting one’s best foot forward before the agency. There’s nothing wrong with that. But some employers try to conceal witnesses or evidence, falsify documents, threaten or intimidate adverse witnesses, or lie to the investigator. This could be criminal behavior, and at the very least, it will destroy any good will you might have had with the EEOC and can be used against you in the event of a lawsuit. (And held against you in future cases.)
No. 3: They don’t remediate. Nobody’s perfect, definitely including me and possibly including you. Sometimes an employer just flubs a situation, even though its intentions were good. If you get an EEOC charge and realize you messed up, then start trying to fix things right away. If you act quickly enough, you might be able to reinstate an employee who was terminated wrongfully. If that isn’t possible, you might be able to reach a relatively modest settlement through mediation. You may think doing this will hurt your reputation with the EEOC, but it’s actually going to give you credibility and make it easier to defend the next charge, where you did everything right.
No. 2: They don’t consultate. Have you “consultated” with an employment lawyer about your EEOC charge? Yes, lawyers are expensive, but getting one involved at the beginning of a charge (or before) can save you a bundle — and maybe even prevent a lawsuit — later.
No. 1: They don’t calibrate. Employers haven’t done much “calibration” lately — partly because it might not have been as urgent with a relatively employer-friendly administration, and mostly because COVID and lockdowns made it so difficult in the past year. But this is a very good time for employers to monitor their EEO compliance company-wide. Some areas to look at include jobs that seem to be segregated by race or sex, checking EEO policies to make sure they are current and compliant, and ensuring that there are effective procedures for employees to express concerns and make complaints. Employers should also review their medical leave/reasonable accommodation policies and procedures. And, how about training? Training may have slipped through the cracks in the past year, but this is a good time to provide updated management training on employee relations, discipline and discharge, discrimination, reasonable accommodation, retaliation, and — of course! — harassment. Larger employers should also be on the lookout for trends in their charges and lawsuits. Even if some of the legal action is frivolous, high volume might be a warning sign of other issues, like poor morale or problematic managers.
Next week, I’ll be back with some more suggestions, but from a more “employer-friendly” standpoint.
Oh . . . and don’t forget to “spring forward” tomorrow night. Happy DST!
Still Image Credits: “Sheriff Biden” is an image that I Photoshopped using pictures from flickr, Creative Commons license (sheriff’s badge is from Maryland GovPics, caricature of President Biden is by DonkeyHotey); frowning woman by Drew. Fish contemplating hook is from Adobe Stock.