Compliance Training Requirements in EEOC Settlement Agreements

When the US Equal Employment Opportunity Commission (EEOC) announces a settlement with an employer, the press release generally says that the employer agrees to provide certain kinds of compliance training in the future. In EEOC settlements announced in March 2017, the EEOC announced that it had required an Illinois sheet metal company to train its employees on harassment and discrimination, required an Illinois food service company to train its managers on the requirements of the Americans with Disabilities Act, and required a janitorial cleaning services company to train all employees about unlawful discrimination.

What are the Typical Compliance Training Requirements?

But the compliance training requirements can be much more onerous than the brief descriptions in EEOC press releases might lead a reader to expect. Consent decrees that employers and the EEOC enter into, which are public documents, go into much more detail about required compliance training. For instance, in February 2016 the Vail Run Community Resort Association agreed to settle a sexual harassment, national origin discrimination, and retaliation lawsuit brought by Mexican female employees who were harassed by the Association’s male housekeeping manager. The EEOC press release announced that the Association would have to implement “substantial semi-annual training for managers on sexual harassment and the responsibilities of managers once a report of sexual harassment is made.”

The five-year consent decree provides more details, specifying that the Association was required to hire outside vendors to provide the following training on federal antidiscrimination laws:

  •         Nonmanagerial Employees: At least three hours of training on discrimination law
  •         Supervisory and Managerial Employees: Twelve hours of training annually (provided at least semi-annually) on antidiscrimination laws and on how to receive and investigate complaints of harassment and retaliation
  •         Senior Management: Training similar to that of supervisory and managerial employees, and training on how to document and preserve evidence of discrimination
  •         Employees Designated To Receive Discrimination Reports: At least four hours of annual training on accepted professional standards for receiving and investigating complaints, including witness interview techniques, other evidence-gathering techniques, maintaining investigative notes and records, legal analysis of the evidence, and methods for eliminating and ameliorating violations of anti-discrimination law
    .

Not every consent decree will require third-party compliance training or even new training. As labor mediator Amy L. Lieberman said in a Bloomberg BNA interview with Lydell C. Bridgeford:

Depending on the employer’s current training, sometimes the parties can agree to continue with what the employer already provides. In cases where the employer does not already do training, I have often seen the EEOC and the company agree that the company’s employment counsel or in-house counsel can provide the training, as opposed to forcing the employer to hire a third-party provider.

So an employer with a compliance program might be able to continue with its own training, especially if the employer didn’t have widespread problems that were caused by a deficient compliance program. Companies should be sure to monitor their compliance program effectiveness if they want to be able to argue that an issue was confined to one circumstance or individual.

Companies should also examine the EEOC’s publications, such as its 2016 retaliation enforcement guidance, which the EEOC believes is a good resource for employers.  

Monitoring Consent Decrees

The EEOC monitors consent decrees and will file a lawsuit against a company that doesn’t comply. As the EEOC notes in its manual on Monitoring and Enforcing Consent Decrees, in 2001 it successfully sued a retailer for contempt for failing to comply with consent decree provisions. The penalty imposed was $750,200 ($100 per day of noncompliance, for each of 22 stores) in addition to attorney fees and other costs. The EEOC also extended the original consent decree by 18 months.

In an article by Gloria Gonzales for the Business Insurance website, EEOC trial attorney Richard Mrizek commented that consent decrees are meant to help companies deal with the issues that got them into trouble with the EEOC. “We’re not just settling it for money to make things go away,” said Mrizek. “We’re also looking at what can we do that we think will solve the company’s problems such as compliance going forward.”

Employers Should Assess Compliance Risks

Twelve hours of training may seem excessive, especially to employers who don’t have compliance problems, but some sort of regular training is a good idea. Employers should assess the risk of compliance issues in their workplace. For instance, in this case,  the Association’s housekeeping manager was in charge of employees who were fearful of being reported for their immigration status. This resulted in a risky situation for the Association, because the housekeeping manager took advantage of the employees’ fear.

Accordingly, the consent decree required the Association’s compliance training for managerial and supervisorial employees to emphasize that “due to their position of power,” such employees must be particularly vigilant not to discriminate, must be sensitive of how their actions or words might be perceived by subordinates, and must avoid the temptation to retaliate against an employee who makes or might make a complaint.

The more at-risk an employer is, the more they’ll want to improve programs, bolster implementation of their compliance programs, and communicate the programs by training. The more risk, the more training.

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