As reported on Foley’s Labor and Employment Perspectives Blog in November 2010, the EEOC filed nearly 100,000 charges in fiscal year 2010. This number amounted to the most charges ever in the EEOC’s 45-year history and represented a 7.2-percent increase over the number of charges filed in 2009.
The EEOC’s enhanced approach highlights the need for employers to respond with extra concern and resources when facing a charge that attacks a policy or practice. EEOC attorneys recently shared a list of best practices to implement in responding to an EEOC charge, including:
- Provide all the evidence that the EEOC requests.
- Provide documentation to support employer position statements. An EEOC attorney stated that a position statement that relies on real evidence — rather than an over-reliance on the law — is the most convincing way to disprove discrimination.
- Cooperate. EEOC attorneys cautioned against resisting a charge, confirming that it will likely “arouse suspicion” and lead the agency to question what the employer is hiding.
- Treat the investigators respectfully and avoid “badmouthing” the charging party.
EEOC attorneys also provided the following insight into the agency’s recent increase in the number of charges filed.
- EEOC attorneys are confident courts will enforce the agency’s subpoenas, including when the information sought goes beyond the initial charge.
- The EEOC is attempting to conduct an increased number of onsite investigations, including audiotaped interviews with employees who are under oath.
- Recent amendments to the ADA and recent disability-related court decisions have caused the EEOC to view more individuals as disabled, including individuals with arthritis, epilepsy, some types of cancer, diabetes, and some psychological disorders.
- EEOC attorneys also noted that, perhaps unknown to many employers, it has filed approximately 200 charges of genetic discrimination. The EEOC sees potential areas of genetic discrimination in employer requests for family medical histories, fitness-for-duty tests, and medical examinations where the examining doctor inquires into past medical history.
Employers should be aware of the EEOC’s increased enforcement efforts, and respond with concern and resources when facing an EEOC charge. More information about the EEOC is available online at EEOC.gov.