Came across an interesting just-launched website devoted solely to providing employers and their HR teams with, as the site says, “expert, creative, and cost-effective solutions for managing the burgeoning risk of workplace EEO disputes.”
A bit too focused, you might ask? Au contraire, says Merrily Archer, an employment attorney and founder of Denver-based EEO Legal Solutions and it’s brand new site. Here’ how she describes “the gathering EEO storm” on her home page:
The number of EEOC charges will hit 100,000 in 2012, with increasing prevalence of age, disability, retaliation and systemic (‘disparate impact’) charges. In-house counsel now report that employment matters, both administrative activity and litigation, rank first in amount and frequency. No doubt, the ‘face’ and frequency of discrimination has changed markedly since the Civil Rights Act of 1991, ranging from pro se individual charges to full-blown EEOC systemic investigations and class-action litigation. Given the variable risk inherent in EEOC charges and EEO litigation, employers must master claim avoidance, evaluation, and resource allocation to avoid defraying expensive external ‘solutions’ to comparatively minor EEO problems.
Archer, a former attorney with the U.S. Equal Employment Opportunity Commission, know’s from whence she speaks. She’s been a key and outspoken source for HRE on the EEOC’s aggressive systemic push of late, in this piece, this one, and this, to share just three. She also contributed this byline for us on how to fight back against the push.
Her new site, she says, offers employers’ existing HR and legal teams coaching and training “to reduce reliance on outside counsel and by extension, expensive ‘solutions’ to more minor EEO problems. Through lean litigation, EEO Legal Solutions proves that employers can still afford to fight when they’re right.”
For your frame of reference, and an understanding of what the EEOC is after, here is the agency’s selected list of systemic hiring resolutions and filings as of April and a full rundown of the systemic focus when it was initially proposed years ago.
I especially like Archer’s blog post on her site itemizing the reasons “Our Workplaces Don’t Work”:
Since the passage of the Civil Rights Act of 1991, our workplaces have become ‘overlawyered’ regulatory quagmires in which employers balance competing laws and risks on a daily basis: the risk of a negligent hiring/entrustment/supervision claim versus the risk of an EEOC systemic investigation over use of pertinent criminal background information; the risk of retaining an underperforming employee versus the risk of an EEOC charge; the risk of workers’ compensation claims against the risks of claims under the Americans with Disabilities Act, as amended, and the absurdly complicated Family and Medical Leave Act; the risk of financial collapse versus the risk of individual and systemic EEO claims arising from a necessary reduction-in-force; the risk of going out of business versus the risk that the EEOC will impose its judgment regarding what constitutes ‘successful’ job performance … and on it goes … employers have become stuck in this ‘damned-if-you-do-damned-if-you-don’t’ EEO regulatory maelstrom, sacrificing basic management considerations of employee accountability, reliability and even competency.
William Tate, president of Chicago-based HR Plus screening solutions, talked about that first risk when he and I met at the Society for Human Resource Management conference this past June. He likened the EEOC’s background-screening mandate to a kind of “Sophie’s Choice” for his clients between following the new rules and keeping their workplaces safe.
The cost alone of retraining recruiters to conduct and document individual reviews for each former convict, he told me, threatens many (especially smaller and mid-sized) employers’ survivals.
And he didn’t even mention the legal costs Archer says she aims to spare employers.