Tag Archive for: policy

9 Tips for Employers to Develop a Model EEO Complaint Policy and Procedure

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Author: Sarah Crawford

To prevent and address discrimination, harassment, and retaliation in the workplace, employers must provide effective policies and procedures. An effective policy sets expectations about behavior, provides examples of prohibited conduct, and explains the complaint and investigation process. Investigations should be conducted in a timely manner, and determinations should be communicated to the parties. Disciplinary action should be progressive and proportional to ensure accountability. Employers should incorporate the following considerations to ensure effective policies and procedures. Managers and staff should be trained on these policies and procedures.

  1. Detail what constitutes prohibited conduct. It is important to nip small problems in the bud to ensure a safe and respectful work environment. Make clear that not only unlawful conduct, but also inappropriate conduct will not be tolerated, including stray comments, sexist or racist jokes, etc. Consider establishing a policy that addresses relationships between employees and/or prohibits relationships between supervisors and direct reports.
  2. Make clear who can report concerns or file a complaint. Make clear that employees who experience or witness inappropriate conduct, discrimination, harassment, and retaliation can raise concerns and make complaints.
  3. Make clear that the policy applies both within and outside of the workplace. The policy should apply to conduct at work, business events, social events, on social media, and by phone, text, email, etc.
  4. Make clear that inappropriate conduct by third parties or directed to third parties will not be tolerated. The policy should state that harassment, discrimination, and retaliation by clients, members, customers, vendors, contractors, etc. will not be tolerated. Likewise, inappropriate conduct by employees will not be tolerated when it is directed toward a third party. In the case of inappropriate conduct by a third party, corrective action may include termination of the business relationship.
  5. Provide multiple points of conduct with the organization. Make clear that employees can report concerns to a supervisor, human resources officer, or other designated individuals, such as a board member. Ensure that reports can be made to trusted individuals and consider the gender and racial diversity among the individuals assigned to hear concerns. Specify mandatory reporting obligations for individuals designated to receive complaints. Provide an effective reporting policy for complaints against managers and organizational leaders.
  6. Consider offering anonymous reporting to an independent third party, such as an ombuds. An organizational ombuds can provide an independent and confidential resource to help employees explore options to resolve conflicts and concerns at the work.
  7. Take prompt action to address inappropriate conduct. Accountability is key. The response should be prompt, thorough, and proportionate. Clearly lay out the process and timeframe for each stage of the investigation process. Corrective action may include counseling, discipline, or termination. The response should be clear, consistent, and transparent. Communicate the resolution to the parties involved. When concerns about inappropriate conduct are widely known within the organization, the organization should communicate a strong message to staff that inappropriate conduct will not be tolerated and corrective action has been taken.
  8. Provide strong protections against retaliation. Make clear that retaliation will not be tolerated when a complaint is made in good faith, regardless of whether the complaint is ultimately deemed to have legal merit. Make clear that protections apply to witnesses and others involved in the investigation. Prohibit retaliation of any kind, including discharge, an adverse job assignment, harassment, bullying, professional disparagement, etc.
  9. Provide regular training on policies and procedures. Ensure that employees and managers understand their rights, obligations, and applicable procedures. Consider providing interactive, skills-based training to enable targets of inappropriate conduct to take action and to enable bystanders to intervene to disrupt inappropriate conduct.

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Does the law protect the LGBTQ community from discrimination? It should be an easy answer.

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By Jenny Yang

Originally published in The Washington Post

Jenny Yang, Strategic Partner at Working IDEAL, was commissioner of the U.S. Equal Employment Opportunity Commission from 2013 to 2018 and is a senior fellow in the Center on Labor, Human Services, and Population at the Urban Institute.

The Supreme Court decided Monday to hear a trio of cases addressing a long-disputed and critically important question: whether discrimination based on sexual orientation or gender identity is prohibited under the Civil Rights Act of 1964. This issue has profound implications for our understanding of the meaning of equality. Although this question has fractured the United States for decades, the answer should be easy.

Title VII of the Civil Rights Act bans employment discrimination “because of [an] individual’s race, color, religion, sex, or national origin.” Sexual orientation and transgender status are not listed as specific protected categories. But no such language is required. The beauty of our nation’s civil rights laws is that they protect everyone — including lesbian, gay, bisexual and transgender people — who faces discrimination based on sex.

Under Supreme Court precedent, the question should be whether an employer relied on sex-based considerations or took gender into account when taking the challenged employment action. In 1989, the Supreme Court established in Price Waterhouse v. Hopkins that discriminating against an employee for not conforming to gender stereotypes — in this case, not walking, talking or dressing “more femininely” — is sex discrimination. The court concluded that Title VII means “that gender must be irrelevant to employment decisions.”

In 1998, a unanimous Supreme Court in Oncale v. Sundowner resolved a dispute among the lower courts, finding that Title VII prohibits the “entire spectrum” of sex-based discrimination — even a man harassed by other men. Although Congress may not have contemplated this situation when it passed Title VII, Justice Antonin Scalia, in writing for the majority, called for “common sense” in evaluating claims in “social context,” recognizing that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.”

In 2015, while I served as chair and commissioner of the U.S. Equal Employment Opportunity Commission, we deliberated carefully before concluding in Baldwin v. Department of Transportation that discrimination based on sexual orientation is discrimination because of sex. The commission determined that this reading of Title VII is the most faithful and common-sense interpretation of the plain words of the law and Supreme Court precedent. In 2012, the commission in Macy v. Department of Justicereached a similarly straightforward conclusion that discrimination against transgender people is a form of sex discrimination.

In Baldwin, the commission explained that the concept of sexual orientation is inseparable from and cannot be explained without reference to sex. Indeed, an employer that fires a woman because she has a female spouse has taken gender into account where the employer would not have fired a man for that reason. In addition, courts have long recognized that employers cannot discriminate against employees for associating with someone based on race, and these principles apply equally to same-sex relationships.

To be sure, when the commission decided the Baldwin case, we were well-aware of the contrary precedent on this issue. Although earlier case law essentially carved out an exclusion in Title VII for discrimination based on sexual orientation even if related to sex, this reading finds no support in the statute. Indeed, many of the cases holding that Title VII does not cover sexual orientation either predate the Price Waterhouse and Oncale decisions or reflexively adopted earlier outdated reasoning.

Notably, this precedent developed largely in the 1970s and 1980s when same-sex relationships were not just a cultural taboo, but also a crime in many states. These cultural biases prevented a straightforward application of the sex discrimination language of Title VII. Today, we have an opportunity to ensure our understanding of equality is not the product of historic biases.

I am often reminded of Justice Anthony M. Kennedy’s words, writing for the majority in recognizing marriage equality, that the “nature of injustice is that we may not always see it in our own times.” Throughout history, we have seen that, as our nation evolves, we continue to define what it means to be equal.

Most courts once ruled that sexual harassment in the workplace was a personal matter or an inevitable result of having women in the workforce and not a form of sex discrimination. Often it takes a cultural shift to change our understanding of long-standing practices that may have been widespread and tolerated but are unjust and illegal.

Today, courts are increasingly recognizing that no statutory basis exists for excluding LGBTQ individuals from the rights provided to us all. The ability of millions of Americans to support their families and live with dignity should not need to wait for further congressional action. Congress has already spoken by prohibiting discrimination based on “sex.” And that is why this should not be a hard decision.