Information for Employers


This page provides summary information that may be useful to employers. Please note that only basic information is provided here about each topic. This information may be supplemented with information from other sources, including government agencies, and attorneys. Equal employment opportunity laws, and other laws, impose additional requirements on employers that are not discussed here. Equal employment opportunity laws also cover employment agencies, and labor organizations, but information is not presented here concerning those organizations.

CONTENT

1. IF AN EMPLOYEE OR APPLICANT COMPLAINS OF DISCRIMINATION

2. REALITY CHECK

3. RECORD-KEEPING

4. POSTINGS

5. BROAD DISCOVERY OF EVIDENCE

6. NON-RETALIATION

7. AGENCY CONTACTS

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1. IF AN EMPLOYEE OR APPLICANT COMPLAINS OF DISCRIMINATION

If you receive a complaint of discrimination, the following information may be helpful to you. These are generic ideas that should be supplemented with other information, and tailored to the particular situation. Employment discrimination complaints involve human and organizational issues, in addition to the law.

a. Gather Information - The matter may be assigned to someone who is objective and not directly involved in the complaint, and is knowledgeable of equal employment opportunity law. Create a case file, and maintain it confidentially. Interview the complainant about the the complaint. Invite the complainant to submit a written statement describing the complaint, and relevant records and correspondence. Advise the complainant to report any future acts of suspected discrimination, or retaliation. When you learn the details of the complaint, you may want to consult with an attorney, or other professional, about the relevant law, and what information you should obtain to evaluate the complaint. Then conduct an investigation of the complaint, using a qualified personnel officer or outside investigator. Consider that the investigation may not be protected from discovery in litigation. There is conflicting case law about whether the investigation may be protected from disclosure as attorney work product if the investigation is conducted by an attorney. During the investigation, collect the material that you will need to evaluate the complaint, including laws and regulations; employment policies and procedures; and, personnel records. Notify the alleged discriminatory official of the complaint, and allow that person the opportunity to have input into the investigation. Interview witnesses as appropriate, and prepare interview reports. Inform the alleged discriminatory official, and witnesses, of the non-retaliation requirements of law. To the extent possible, conduct the investigation in a quiet manner, and try to protect the privacy rights of all persons involved. Keep the parties informed generally of the status of the matter, and allow the complainant and the alleged discriminatory official a final opportunity for input before the investigation is concluded.

b. Evaluate the Evidence - After the investigation, have a qualified person evalute the evidence. Consider preparing a report describing the evidence that was disclosed regarding the alleged discrimination, and possibly analyzing the evidence to reach a conclusion of whether unlawful discrimination occurred. Remember that the investigation report may not be protected from disclosure during litigation. Discrimination may be shown by: direct evidence of discriminatory bias because of a protected basis; different treatment of similarly-situated persons from diffenent equal employment opportunity groups; or, that an employment policy or practice has an adverse impact on a protected equal employment opportunity group, and it cannot be justified as a business necessity. Disability laws may require the reasonable accommodation of persons with mental or physical disabilities. Depending on the size and experience of your staff, you may want to consult with an attorney, or other qualified professional, when evaluating the evidence. The purpose of this evaluation is to determine whether unlawful discrimination may have occurred. You should also be alert to whether the evidence shows that the company's employment policies and procedures were not followed, which may expose the employer to claims like wrongful termination, and be alert for possible violations of other laws.

c. Take Appropriate Action - If you conclude that unlawful employment discrimination may have occurred, take immediate and appropriate action to remedy it. The circumstances of the particular case determine what is the appropriate remedial action. The corrective action may include granting to the complainant an employment opportunity that was unfairly denied, or rescinding an undeserved adverse employment action. The legal requirement is to "make the complainant whole" by placing her where she would have been if the discrimination had not occurred. Appropriate corrective action may also include disciplinary action against the person responsible for the discrimination. Exercise caution in stating your conclusions about the investigation, because an admission may be used in litigation. If you conclude that discrimination did not occur, you may inform the complainant of that decision, and of any rights that she may have to appeal the conclusion. If the investigation revealed that employment policies or procedures were not followed, or that the employment action was unfair otherwise, you may want to take corrective action even if you conclude that unlawful discrimination did not occur. It is usually in the best interests of an employer to have employees who feel that they have been treated fairly. It may be helpful to allow the complainant to state what she seeks as a remedy, and to consider that in formulating a resolution. Whenever possible, try to resolve the dispute within your work environment to save the time and expense of possible litigation. Consider using an outside mediator or other professional person to help you resolve the matter.

2. REALITY CHECK

When you handle complaints of discrimination from employees or applicants, and evaluate information developed through investigations, consider that some employers have a limited perspective that prevents them from viewing evidence objectively. Remember that the evidence will be evaluated by independent triers of fact if the complaints reach a government agency or litigation. It may be helpful to discuss the matters with attorneys or other professionals to obtain objective evaluations. Some employers may avoid settling discrimination complaints because they feel it would be a sign of weakness, or it may encourage other employees to complain. Consider that employers may save substantial amounts of time and money, and also maintain productive work environments and positive public images, by resolving discrimination complaints fairly.

3. RECORD-KEEPING

Laws and regulations require employers to maintain employment records. Failure to maintain employment records as required, or intentionally destroying records relevant to current or anticipated legal proceedings ("spoliation"), may result in negative legal consequences for employers, including monetary penalties, unfavorable evidentiary rulings, or legal inferences that an employer did not maintain the records because they were adverse to the employer's position in a case.

The U.S. Equal Employment Opportunity Commission requires employers to maintain employment records for one year, and to also retain records related to a charge of discrimination until final disposition of the charge (29 CFR 1602.14). Medical records are to be maintained confidentially and separate from personnel records under the federal Americans With Disabilities Act (42 USC 12112(d)). The federal Age Discrimination in Employment Act requires employers to maintain payroll records for three years (29 CFR 1627.3). Employers of 100 or more employees are required to file an EEO-l reporting form with the federal Joint Reporting Committee (29 CFR 1602.7). The federal Family and Medical Leave Act, enforced by the U.S. Department of Labor, requires employers of 50 or more employees to maintain compliance records for three years, and to maintain medical records confidentially and separate from personnel records (29 CFR 825.500).

Employers in California are required by the Fair Employment and Housing Act to maintain employment records for two years (Cal. Govt. Code 12946); by the California Family Rights Act to maintain compliance records for two years (Cal. Govt. Code 12946); and, by the California Labor Code to maintain employee wage records for two years (Cal. Labor Code 1174). Records needed for preparation of California Employer Information Reports (CEIR) are to be retained for two years from the date the CEIR is prepared (2 Cal. Code Regs 7287). Medical information is to be maintained separately from other personnel records according to the California Confidentiality of Medical Information Act (CC 56 - 56.37).

Employers in Oregon are required by state law to maintain payroll and time-keeping records for at least two years (OAR 839-20-080).

4. POSTINGS

Laws and regulations require employers to post notices to inform employees about equal employment opportunity. Failure to post required notices may result in negative consequences for employers, including monetary penalties, tolling of a statute of limitations for employees to file charges, or an inference that an employer did not take adequate steps to eliminate discrimination and harassment.

The U.S. Equal Employment Opportunity Commission requires employers with 15 or more employees to post a non-discrimination notice (42 CFR 60-142).

The U.S. Department of Labor requires employers with 50 or more employees to post a notice about the Family and Medical Leave Act (29 CFR 825.300(b).

Employers with federal government contracts are required by executive orders to display additional notices.

California law requires employers with 5 or more employees to post a notice from the Department of Fair Employment and Housing (DFEH 162), and a notice about pregnancy leave (2 Cal. Code Regs 7291.16), and the law requires employers with 50 or more employees to post a notice about the California Family Rights Act (2 Cal. Code Regs 7297.9).

Oregon employers are required to display an Oregon Family Leave Act poster (OAR 839-009-0300), and additional postings provided by the Oregon Bureau of Labor and Industries (ORS 659.490).

Contact the appropriate government agencies to request copies of the required notices.

5. BROAD DISCOVERY OF EVIDENCE

Evidence that is created by a party in a discrimination case may be discovered by the opposing party in litigation, and other proceedings This evidence may include items that a party may not expect to be disclosed, like notes, calendars, and electronic mail. There are privileges that may protect some documents from disclosure, like communications with attorneys that are covered by the attorney-client privilege.

In California it is unlawful to record a confidential conversation without the permission of all participants (Cal. Penal Code 632). Oregon law prohibits recording an in-person conversation, unless all participants are informed (ORS 165.540(1)(c)), and prohibits recording a telephone or radio communication unless one participant gives consent (ORS 165.540(1)(a), and 165.543(1)).

6. NON-RETALIATION

Equal employment opportunity laws provide that employers may not retaliate because a person files a discrimination complaint; participates, assists or testifies in an investigation or litigation; or, opposes discriminatory employment practices (e.g., 42 USC 2000e-3; 29 USC 215(a)(3)). Complainants may pursue retaliation complaints regardless of whether their original discrimination complaints had legal merit. Alleged retaliation may concern issues like discharge, demotion, harassment, or negative employment references. Employers should be cautious in taking actions against persons who file discrimination complaints, and persons who oppose discrimination, so that the actions are not found to be retaliatory.

7. AGENCY CONTACTS

Government agencies have staff who will answer questions from the public. These agencies are a good source of information about the laws that they administer. Their staff are busy, so you may have to continue to call until you reach someone who will answer your question.

U.S. Equal Employment Opportunity Commission - Call 1-800-669-3362 to be connected with the EEOC office nearest to you.

U.S. Department of Labor, Wage and Hour Division - San Francisco (415) 744-5088; Sacramento (916) 979-2045; Glendale (213) 894-6845; San Diego (619) 557-6375; and, Portland, Oregon (503) 326-3052.

California Department of Fair Employment and Housing - Technical Assistance - 1-800-884-1684.

Oregon Bureau of Labor and Industries, Civil Rights Division - Technical Assistance - 1-503-731-4073.

Some government agencies have web sites that you may reach through the links on the Government Agencies and Programs page of this web site. The Oregon Bureau of Labor and Industries, Civil Rights Division, has a new web page that can be reached there. The California Department of Fair Employment and Housing does not have a web site yet.

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