How Well-Constructed Performance Reviews Can Stop EEOC Complaints

Sometimes, employees blame their negative performance reviews on discrimination, leading to Equal Employment Opportunity Commission complaints and legal battles. The EEOC has a duty to investigate and address all complaints filed, which can mean extended evaluations and potential legal involvement for a business. Companies can avoid complaints with a proactive approach to HR activities, particularly performance reviews.

Why Companies Should Care About the EEOC

The federal government mandates all companies follow nondiscriminatory standards when hiring and managing employees at work. It protects employees and prospective employees from discrimination regarding age (if an employee is older than 40), race, color, religion, pregnancy status, gender, ethnicity, disability, or genetic characteristics.

Although this seems like an all-inclusive list, there are certain characteristics the EEOC does not protect. For instance, companies in most states are allowed to discriminate against employees based on weight, appearance, and ages under 40.

The EEOC has the potential to make life difficult for or even shut down a business that discriminates against employees and prospects, making it a valid concern for companies to keep in mind. Regardless of whether a complaint is legitimate, EEOC involvement can cause trouble for a business.

What Happens When an Employee Files a Complaint?

Your employee may or may not address the problem with you before reaching out to the EEOC to file a complaint, although many do. If your HR department hears of a discrimination complaint, you may avoid EEOC involvement. While you may not know who in the company has discrimination concerns, you can conduct an internal investigation to determine if a complaint is legitimate and address it quickly and fully.

When an employee files a complaint with the EEOC, your company may receive a notice for a charge of discrimination. If you are being charged, immediately speak with company attorneys. Your attorney can provide guidance on properly responding to and handling a complaint.

Although many notices may appear short and succinct, you will likely need to provide comprehensive documentation, research, and support when you respond to the complaint. More information is always better than less when it comes to addressing a discrimination accusation.

An investigation does not mean a company will necessarily face a lawsuit, but it does increase the potential for one. In addition to discrimination suits for damages, a company may also face charges of retaliation after an employee has made a complaint. Retaliation for an employee making a legal complaint is illegal. Make sure all managers and supervisors understand the legal definition of retaliation and guard against any retaliation complaints during and after the course of the investigation.

Performance Reviews May Provide Compelling Evidence against Discrimination

A complaint of discrimination requires a careful response. If your company does not keep strong documentation of department activities, employee behaviors, and managerial actions, then you may have difficulty collecting the appropriate evidence. However, if you use a standardized template for the performance review process and keep employee performance logs, you may use this information to help counter a charge of discrimination.

For instance, it can show that your management team took appropriate actions in light of poor performance and not because of discrimination. Merit-based actions are not discriminatory and can exonerate a company from these types of claims. Ask your attorney for more information on types of evidence that may help your company disprove discrimination.

Maintain Strong Performance Review Standards to Avoid EEOC Complaints

No company wants or needs discrimination complaints. It not only costs valuable time and money, it may also damage a company’s reputation as a workplace and among consumers. Your brand identity relies, in part, on how you treat your employees. Taking a proactive approach to the managerial process, including performance reviews, can help your company avoid costly litigation and reputation damage.

Consider these proactive approaches to minimize EEOC complaints in the workplace:

  • Use a standard performance review template for all employees within a department: While you may need to use a different template for each department, make sure people working in the same areas are evaluated with the same set of standards. Use a template including the hard and soft skills an employee needs to succeed in the department and on a career path in the company. Avoid using vague standards or varying metrics in individual meetings, and focus on behaviors and activities, not the person.
  • Provide ongoing HR training for all managers and supervisors: Anyone in a position of authority in your organization should have discrimination training. In some cases, it may be wise to conduct training for every employee in the organization. Make sure managers understand the difference between performance and relationship difficulties.

Each is an important aspect of maintaining a strong work dynamic, but a professional relationship should never cross over into performance analysis activities. Encourage employees to avoid using statements that relate directly to the individual’s unchangeable characteristics. Telling employees they need to cover up tattoos or piercings is different from telling employees that they cannot reasonably adhere to religious practices.

  • Understand the changing world of discrimination: The world of employee discrimination laws is constantly changing, and just because an action doesn’t overtly seem like discrimination, ultimately many activities are judged by individual courts. Invest in strong legal counsel to advise your company on maintaining nondiscriminatory practices in the workplace.
  • Protect employee confidentiality: An employee has the right to remain anonymous when he or she files a complaint with the HR office or the EEOC. If you need to notify your employees of potential EEOC activities in the workplace, protect employee privacy with each communication.
  • Use strong record keeping to support your company’s actions: Documentation of performance, department activities, and communications are all forms of evidence that can help a company prevent or fight discrimination charges. Never attempt to hide complaints or discriminatory behavior, but do record any measures your company takes to avoid and address accusations of discrimination.

It’s never too late to start enhancing your company’s record-keeping practices. Start by downloading an easy-to-use performance review template for routine performance evaluations.

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