Pages from the Opposition’s Playbook: The EEOC Revises its Compliance Manual

If your company has ever had a charge of discrimination filed with the EEOC by an applicant, employee or former employee, the process probably went something like this: you received notice of the charge, were given a few weeks to respond to the charge, and you (or your company attorney) submitted a “position statement” to the EEOC. In your position statement, the company’s story was told, setting forth the reasons why the events at issue were not discriminatory. At that point, an EEOC investigator reviewed the position statement and either dismissed the charge, finding no evidence of discrimination, or took further action, such as the issuance of the dreaded and feared “cause-finding” (in other words, the investigator found cause to believe that your company had engaged in some type of harassing or discriminatory conduct).

If you have ever been through such a situation, you may have asked yourself how the investigators make their decisions. Obviously, part of that comes from a determination of what the employee and employer tell them. But central to their decision are the guidelines set forth in the EEOC Compliance Manual. The Compliance Manual is the EEOC investigator’s Bible. It sets forth rules and regulations to be followed. More importantly, it tells investigators what factors they are to consider when investigating a claim.

Recently, the EEOC revised the provisions of the Compliance Manual relating to race and color discrimination. In this revision, the EEOC sets forth a “non-exhaustive list” of types of evidence that can constitute potential evidence of race discrimination. This list includes:

• • Race-related statements (oral or written) made by decision makers or persons influential to the decision;

• • Comparative treatment evidence, i.e., evidence that similarly situated persons of a different race were treated differently from the charging party;

• • “Relevant background facts.” This catch-all category includes items such as race-related attitudes, the general work environment, and the context of the challenged employment decision;

• • Whether the employer complied with the relevant personnel policies;

• • The race of the decision maker;

• • Statistical evidence; and

• • The credibility of the employer’s explanation.

As the Compliance Manual explains, this list is not exhaustive, and the relevance of particular facts will depend on the nature of the case. However, it is important to consider these factors if your company is faced with a charge of race discrimination, since the investigators will typically find these factors to be the most important factors when analyzing the data before them. This list of factors is also a good benchmark for employers to consider if they are faced with an internal complaint of discrimination and are conducting their own investigation.

Remember, a charge of discrimination is simply the beginning of what can be a process that ends with litigation. As with most legal matters, getting off to a good start is critical, and in the world of employment law, that means obtaining a quick dismissal of the EEOC charge. By taking the Compliance Manual revisions under consideration when dealing with the EEOC, you can increase your chances of a good result at the administrative level. The new manual provisions can be viewed online at www.eeoc.gov/policy/docs/race-color.html.