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A Useful Guide for Enforcement Policies from the EEOC

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 The EEOC laid out its enforcement game plan in a

detailed announcement last month. "What leaps off the page," says Fisher & Philips partner Randy Coffey, "is that the EEOC is going to be expanding its efforts and is re-energized for the second term of the Obama Administration." While cases brought against large employers often make a big splash in the news media, that should not lull small employers into thinking they can fly under the EEOC's radar.

Cases are generally brought to the EEOC by employees, former employees

and rejected job applications who believe they are discrimination victims.

Sometimes such employees are recruited by attorneys sniffing out

litigation opportunities. Filing a complaint is not an onerous task.

If the EEOC investigates the complaint and concludes that a particular

employment practice pattern would allow the Commission to make an example out of the company involved and thus deter the discriminatory practice more broadly), it will do so.
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Inadvertent Discrimination How might you inadvertently trigger an EEOC complaint? Coffey offers some illustrations. Under the heading of barriers in recruitment and hiring, a practice "that would tend to suggest that particular individuals are being channeled into particular jobs" would be a big red flag.

Example: Hispanic job applicants who come to a company inquiring about

any job openings are encouraged to apply for positions in the maintenance department, without apparent consideration of other jobs for which they might qualify.

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 Another example, from a case he is familiar with: A hiring manager took

snapshots of applicants during job interviews and affixed the photos to their job application forms.

While the intent was to aid the hiring manager's memory when later
reviewing the stack of applications, it was interpreted as a device to enable racial discrimination.

Asking for an applicant's date of birth is a classic employment blunder

that can easily be interpreted as an instrument of age discrimination.

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Women's Pay Patterns

What about gender-based pay discrimination? A system of negotiating

the starting pay of new employees for particular jobs based solely on their years of experience in a similar job could have the effect of favoring men.

That could occur if female new-hires had spent more time out of the
workforce than men before applying for the position. The EEOC could take the position that workers' skills aren't strictly determined by years of experience after a certain threshold is reached, and that this policy constitutes pay discrimination.

The common denominator of EEOC cases -- and the ammunition that

plaintiffs' attorneys seek -- is instances of inconsistent treatment of employees, Coffey reminds employers. "This person got fired for doing something that two other people didn't get fired for," he illustrates.

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 Employment attorneys like Coffey lament that employers often don't get
an expert assessment of their employment practices to check for possible areas of vulnerability until they run into trouble.

A quick legal check-up, reviewing an organization's "overall structures for

dealing with employees" can be a smart investment.

If you have to defend yourself against an EEOC complaint, even if you

succeed, you lose. That's because, beyond the aggravation, lost time and possible negative publicity, the person who brought the complaint is highly unlikely to be ordered or able to compensate you for the cost of your defense -- or to be able to afford it even if so ordered.

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