Public Input on EEOC's Proposed Enforcement on Retaliation and Related Issues

Tel: 800-‐831-‐1561 Workplace Investigations Group Fax: 404-‐920-‐0401 1827 Powers Ferry Road Lorene@internal-‐investigations.com Suite 23-‐200 www.internal-‐investigations.com Atlanta, Georgia 30339

February 24, 2016 Public Input EEOC Executive Director 131 M Street, N.E. Washington, D.C. 20507 Re: Public Input on Proposed Enforcement on Retaliation and Related Issues Dear Executive Director: I am submitting this input on the EEOC’s Proposed Enforcement on Retaliation and Related Issues as the President of Workplace Investigations Group (“WIG”). WIG is a company headquartered in Atlanta, GA that consults with employers on how to develop and implement EEO compliance programs and dispute resolution processes that are trusted by employees. We also deliver training on how to conduct internal EEO investigations that will withstand scrutiny and provide a nationwide directory of well-qualified employment attorneys who can be retained to conduct impartial fact-finding internal investigations into allegations of workplace misconduct, including EEO. In addition to the excellent guidance provided in the EEOC’s draft of 1/21/2016, I would like to suggest that Section V on “Best Practices” be modified to include the following example of a best practice that employers can take to reduce the incidents of retaliation. Foster a Culture of Openness and Compliance with Procedurally Fair EEO Processes Assuming that retaliation can be avoided by simply training leaders that retaliation is illegal, ignores the human realities of why leaders retaliate.


Based on my 25+ years of practicing law, my view of why leaders retaliate is that it generally arises out of fear and a sense of self-preservation – fear that the leader has done something wrong or fear that something under the leader’s watch has gone wrong and the leader will be blamed. Faced with this fear and unclear what to do when faced with an employee concern, a leader’s natural tendency may well be to think of all the reasons the employee’s concern can’t be valid and to view the employee’s concern as a personal assault. Leaders may well resort to a “fight or flight” mentality, which often leads to claims of retaliation. What if instead of simply training leaders not to retaliate, organizations fostered a culture where both employees and leaders were encouraged to continually evaluate processes and decisions for EEO compliance? What if organizations implemented EEO processes that were well communicated, transparent and seen as procedurally fair to both leaders and employees? In such a culture, employees would feel more secure in raising a concern and leaders would be less fearful when a concern was raised because everyone would know the concern would be evaluated in a procedurally fair manner with the goal of addressing the concern in a constructive way. According to research conducted by the nonprofit Ethics Research Center:

• Employees prefer to resolve their compliance concerns internally and privately with their employer;

• Employees will report their compliance concerns first internally to their

employer if they perceive their employer’s investigation and resolution process as procedurally fair; and

• Employees will accept the outcome of an employer’s internal investigation

– even when the outcome is disappointing or legal constraints limit what the company can tell the employee about the outcome --- IF the employee perceives their employer’s investigation and resolution process as procedurally fair.

See Ethics Resource Center (2013) Encouraging Employee Reporting Through Procedural Justice Arlington, VA and Resource Center (2012) Inside the Mind of a Whistleblower. Arlington, VA. As a general matter, there are four key aspects to whether a person will accept a decision making process as procedurally fair:


1) Voice – the ability to participate in the review of the complaint by expressing their viewpoint;

2) Neutrality – consistently applied rules or legal principles, unbiased decision makers and a “transparency” about how decisions are made;

3) Respectful treatment – individuals are treated with dignity and their rights are protected;

4) Trustworthy decision makers – decision makers are benevolent, caring and sincerely trying to help the parties to the dispute – this trust is generally garnered by listening to individuals and by explaining the decisions being made.

Lind, E.A. & Tyler, T.R. (1988). The Social Psychology of Procedural Justice. NY: Plenum. According to the research of the Ethics Resource Center cited above, a procedurally fair compliance and dispute resolution process:

• “Clearly explains the company’s procedures for investigation and resolution of reports;”

• “Consistently follows those stated procedures;” • “Treats reporters with dignity, respect, and concern for their well-being;” • “Takes into account the issues raised by all parties;” • “Conducts investigations in a neutral and unbiased manner;” and • “Explains the resolution of the case based on the facts.”

Based on this research and our own experience, at WIG we advise companies wishing to encourage employee reporting of EEO concerns and mitigate instances of retaliation to take the following steps:

• Established procedures for investigation and resolution of EEO concerns; • Clearly explain those procedures to employees and leaders; • Consistently follow the established procedures; • Use investigators who are not only neutral but perceived as neutral and

who will conduct the investigation in a neutral and unbiased manner; • Give the reporting and the accused employee(s) ample opportunity to tell

their side of what happened and in their own words to the investigator;


• Treat all investigation participants with dignity, respect, and concern for their well-being; and

• Consider all of the issues raised by all of the parties during the investigation in analyzing the information gathered and making factual findings.

Again, congratulations on the excellent guidance contained in the EEOC’s Proposed Enforcement Guidance on Retaliation and Related Issues. If I can be of any further assistance, it would be my pleasure to do so. Best regards, Lorene Lorene F. Schaefer, Esq. President Workplace Investigations Group [email protected]

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Public Input on EEOC's Proposed Enforcement on Retaliation and Related Issues