Legal
EEOC Makes Major Changes:
How You Can Avoid Lawsuits
In April 2006, the Equal
Employment Opportunity
Commission (EEOC) unveiled a
national strategy for prosecuting
companies—and industries—that
violate federal nondiscrimination
laws. Structural overhauls to
improve communication plus an
increased focus on proactively
identifying systemic discrimination
and targeting potential offenders
have dramatically elevated risk for
companies that do not comply
with the law, especially for those in
the Fortune 500.
In a Q&A with DiversityInc,
former EEOC chair and noted
employment-law attorney Gilbert F.
Casellas tells you why the EEOC’s
new agenda has increased your risk
of exposure to lawsuits, and what
you can do to avoid them.
DiversityInc: How will the
EEOC’s agenda impact corporate
accountability?
Casellas: The EEOC will operate as
a national law firm, which means
that they will share EEO- 1 data
with all of their offices. Now the
EEOC can do a better job of coor-
dinating information across the
country and compare notes across
regions. If I’m an EEOC investiga-
tor in Los Angeles, for example, I
can now find out fairly easily
whether company XYZ has had
similar charges against it by employ-
ees in Florida and New York or
Chicago. If we determine a systemic
pattern, we’d be able to bring action
against that company or industry.
BY JENNIFER MILLMAN
The risk for a company with
multiple sites in multiple locations is
now greater. It now depends on the
company, industry and composition
of their work force. If you’re sitting
with a Fortune 500 company, you
may have been less of a target in
years past because the EEOC tended
to operate in silos—what happened
on the West Coast may not be related to what happened on the East
Coast, but now they’re figuring out
ways to try to connect the dots.
DiversityInc: How can employers
mitigate legal risks within this
context?
Casellas: It’s particularly important
for large companies that operate
in multiple locations to not be com-
placent with regard to their diversity
programs. We hear people who say,
“We’ve got a fairly mature diversity or
equal employment-opportunity pro-
gram.” That’s not enough to avoid
potential legal liability.
It’s important that companies
constantly refresh and assess their
programs to determine whether
there are disparities between what
they say and what they do. This
requires a rigorous audit of your
processes not unlike audits that
people do in the financial systems.
Diversity programs should be subject to the same type of rigorous
analysis because the risks that are
embedded in those are significant
in terms of the impact on your
brand, your reputation and your
bottom line.
It also depends on what your
history has been of EEOC discrimination charges. If a particular
industry, say retail or foodservice,
has a history of higher incidences
of sexual harassment, then your
assessments around those issues
might be more regular. Many companies don’t undertake these kinds
of analyses because of concern that
if they identify problems, they’ve
now created a roadmap if they get
sued. That’s like saying, “I don’t
want to go to the doctor because I
don’t want to find out what’s wrong
with me.” There’s nothing wrong
with finding out what’s wrong with
you if you’ll take action to repair it.
Gilbert F. Casellas is former chair
of the U.S. Equal Employment
Opportunity Commission and a
member of Mintz Levin Cohn Ferris
Glovsky & Popeo’s Washington, D.C.,
office. Board memberships include
the Johnnetta B. Cole Diversity &
Inclusion Institute, the Hispanic
Federation and the National
Constitution Center. DI
