Since the beginning of 2016, the U.S. Equal Employment Opportunity Commission (EEOC) has made several key changes to its standard operating procedures concerning the handling and investigation of charges of discrimination. The result of these changes continues the recent trend of bolstering legal protections provided to employees by the EEOC.
Proposed Changes to Enforcement Guidance on Retaliation
At the end of January 2016, the EEOC issued a 76-page proposed update to its retaliation enforcement guidance—a document that hasn’t been updated since 1998. The enforcement guidance serves as the EEOC’s interpretation of federal employment laws (Title VII, ADA, ADEA, GINA) based on court rulings. Most notable among the 76-page update is the EEOC’s expansion of what activity it feels deserves protection from retaliation.
For example, the proposed guidance enhances the EEOC’s interpretation of retaliatory “causation”—that is, the requisite connection between a “protected activity,” such as reporting discrimination or sexual harassment, and an adverse employment action, such as termination. Part of the expansion focuses on the ruling from one appellate court, which held that a charging party can discredit the employer’s explanation and demonstrate a causal connection by offering a “convincing mosaic of circumstantial evidence that would support the inference of retaliatory animus.” Many scholars agree that, for employers, this is too broad of an interpretation.
Currently, the EEOC is still seeking public comment on the proposed guidance. And, even if adopted, the guidance is just that—it does not carry the weight of a statute or an administrative decision. However, employers should be aware that the EEOC’s enforcement guidance remains a powerful tool, as it serves as a key reference for EEOC investigators during the investigation stage. As such, many employers rely on the guidance in evaluating personnel decisions.
Charging Party Access to Employer Position Statements
In February 2016, the EEOC announced new procedures for its investigation of EEOC charges. Under these new procedures, a Charging Party can obtain a responding employer’s position statement from the EEOC upon request, and then file his/her own response to that position statement within 20 days. The new procedures apply to position statements requested by the EEOC on or after January 1, 2016.
This marks an important change in the process by which charges of discrimination are handled at the EEOC. Previously, a charging party was not entitled to obtain an employer’s position statement until after the EEOC closed its investigation. Even then, the charging party could only obtain the position statement through an official Freedom of Information Act (FOIA) request. Additionally, the charging party did not have an opportunity to review and/or respond to a position statement during the course of the agency’s investigation.
The EEOC feels this new procedure “significantly improves” its investigative process, by facilitating a meaningful exchange of information and allowing investigators to consider responses.
Going forward, a typical EEOC investigation process proceeds as follows: First, the charging party files a charge of discrimination with the EEOC. The charge is then assigned to the EEOC’s Mediation Unit, which notifies each party of the opportunity to participate in its voluntary mediation program. If both parties agree, mediation is scheduled with an EEOC Mediator. If one or both parties do not agree to mediation—or mediation fails to resolve the issue—the charge is transferred to the EEOC’s Investigative Unit. At that point, the employer is required to submit a written position statement to the EEOC within 30 days (although extensions of time are common).
With the new procedure in place, after the respondent submits its position statement, the charging party may request the position statement from the EEOC Investigator, who will provide the position statement (and all non-confidential attachments) to the charging party. Then the charging party may submit a response to the position statement to the EEOC within 20 days. The charging party is not required to provide his or her response to the respondent; and the respondent may not obtain the charging party’s response from the EEOC.
These changes to the EEOC’s internal handling signal an increased effort on behalf of the agency to provide employees with a strong shield in interactions with their employers. In turn, employers are advised to become more diligent in dealing with personnel issues—especially those that raise the specter of potential EEOC involvement.
This Newsletter is a publication of the law firm of Brunini, Grantham, Grower & Hewes located in Jackson, Mississippi. This Newsletter is not designed or intended to provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.
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