Referrals of Discrimination Complaints to Government Agencies
Gar
347 Posts
An employee feels they were discriminated against (race). He/she used the employer's internal process to resolve the matter but it was not resolved to the employee's satisfaction. The employee asks the employer's EO Officer or Employee Relations Representative about filing a discrimination charge with a state or federal agency. Question: If asked, does the EO Officer/Employee Relations Representative have a legal duty or obligation to advise the employee of their rights to file discrimination charges with government agencies?
Comments
If you fall under EEOC requirements then you must have posted for employees and applicants to see, information about their rights to file a complaint with EEOC. In our policies on sexual harassment and other EEOC-covered areas where there is a right to complain, we specifically put in them a provision about the applicant/employee's right to file a complaint, even without going through any internal process. Additionally, you may be covered under state law that also provides for a complaint process to be filed by an employee or applicant. You should also identify that agency, if applicable.
Once you do those things, the question about whether your EEO officer should or must inform an applicant or employee about his or her RIGHTS to file with EEOC or state agency become moot. The question won't even come up becuase the EEO officer will know to do it just because it's in company policy. To answer your question, specifically, "yes" the EEO officer must tell the employee about his or her rights, especially if your company does not have the legally required postings.
for those infrequent times when the E/R's person did not disclose this info to the employee (inadvertent oversight), the topic was surfaced at the conciliation conference and the employer was chastised for "withholding pertinent information". I say "yes" to disclosing the right to file a complaint with the governmental agencies. Ever thought about adopting mandatory arbitration to your internal process as a way of achieving more perceived fairness????
Here is a thought from a lawsuit perspective: Advising the employee about his rights can undercut any claim of retaliation. It would show that the employer was not trying to discourge the employee from exercising his legal rights.
But make sure that your EEO person gives the information in a neutral or positive fashion. Evidence that the company was displeased by the employee's desire to exercise his legal rights, or that the company discouraged the employee from doing so, could be very damaging in a lawsuit.
I would think it would be enough information to give the employee the phone number for the EEOC or local agency, and let the employee take it from their.
Good Luck!
The decision of the arbitration panel may effectively limit the remedies the individual can get from the eeoc process (this will depend on the specific language of the policy), but the eeoc can still investigate and try to get relief for the public as a whole (like, for example trying to get the employer to do training or trying to get the employer to post something about discrimination).
So the employee will still have the right to go the EEOC or the state agency.
FYI: The law is clear that employers cannot silence employees from cooperating with the EEOC (so for example if you have an employee sign a release and confidentiality agreement as part of a severance package, the confidentiality agreement will not be enforced against the employee participating in an EEOC investigation, the employee may agree not to accept any person relief against the EEOC, but the employee has the right to participate with the EEOC).
Good Luck!