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An Employee Makes a Racial Discrimination Claim – Now What?

By Lacey Conner, SHRM-CP on Aug 13, 2020
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An Employee Makes a Racial Discrimination Claim

The Equal Employment Opportunity Commission (EEOC) says that employers must investigate and work to resolve claims of discrimination by employees and applicants. When an employee makes a racial discrimination claim, employers should not ignore, deny, minimize, criticize, take sides, threaten, demote, or fire the complaining employee, or make fun of the situation. They need to take immediate action because generally the complainant has 180 days from the time of the initial incident to file a claim with the EEOC.

Listen to the Complaint

Understanding the employee’s complaint is important in understanding how to proceed. It is illegal to discriminate in any aspect of employment, including job ads, recruitment, and hiring, job assignments and terms of employment, promotions, pay and benefits, training and employment policies such as dress code, and discipline and discharge.

When an employee complains about racial discrimination, there are a lot of ways for employers to make the situation worse. GEMS Group president Cornelia Gamlem cautions employers to avoid behaviors that could be seen as retaliatory, including threatening or criticizing the employee for reporting discrimination, firing, demoting, or disciplining the employee for reporting, or discussing the claim with anyone inside or outside the company other than those who need to know (those in human resources and legal). Other pitfalls include taking the complaint personally, becoming defensive, or feeling the need to discuss why it isn’t racial discrimination. Gamlem recommends listening seriously and considerately to the complaint without rush to judgment or action like discipline or dismissing the claim.

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Investigate the Complaint

A timely and thorough investigation of the complaint is important to determine if corrective action is necessary and to be able to prevent the situation from happening again. It’s also a legal obligation under many laws such as Title VII and state and local anti-discrimination laws. The EEOC recommends asking the employee to explain the racial discrimination, meet with manager(s) and other employees involved to ask about the situation, and determine whether company policy was applied properly, fairly, and legally.

The Society for Human Resource Professionals (SHRM) says step one in investigating racial discrimination complaints is ensuring confidentiality to the extent possible, explaining to the complainant that information will be shared on a need to know basis during the investigation. Selecting the best investigator is important, and could be HR staff, legal counsel, internal security, or a third party investigator. Any investigator should be impartial and have employment law expertise. SHRM suggests employers may choose a team of experienced investigators from two or more of these areas.

The investigation should include a documented plan of action, interview questions as suggested by the EEOC, interviews with complainant and witnesses, an evaluation of the information and evidence gathered, and a determination.

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Resolve the Complaint

Upon final determination after the investigation, the SHRM recommends that complainant and accused should be notified of the results. There should be timely follow up with the complainant so there is an understanding of the investigation process and the determination, and that the employee knows and agrees that the issue was taken seriously and appropriate action was taken.

After the employee has been told the results, SHRM recommends further follow up to see if the employee has other issues and is back to a secure and productive work environment and work routine. It’s important to encourage open communication and follow up so that the employee feels comfortable at work.

If corrective actions are necessary, they should be taken as soon as possible, including any damages to the victim that need to be remedied, any education or training needed to prevent the issue from happening again, review of workplace policies, and any other appropriate steps. The final part of resolving the complaint and closing the investigation is preparing a final report of the investigation and results, which includes all documentation of the complaint, investigation, and resolution of the claim.

There are many employment laws protecting employees at work, including Title VII of the Civil Rights Act of 1964, the Family Medical Leave Act, the Americans with Disabilities Act, the Equal Employment Opportunity Act of 1972, and the Age Discrimination in Employment Act of 1967. Employee complaints of violations of any of these federal employment laws must be taken seriously and investigated fairly and appropriately to protect both employer and employee and remedy any illegal activity and issues. The first step when any complaint is received is to listen and thoroughly understand the complaint and then take appropriate action.

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