The jury is still out on the Equal Employment Opportunity Commission‘s public portal, according to legal experts.
After being piloted in five field offices last year — Charlotte, Chicago, New Orleans, Phoenix and Seattle — the EEOC’s public portal went live late last year. It enables individuals to submit online inquiries and requests for intake interviews, which are the first steps for filing discrimination charges. However, people can’t use the portal to file online complaints against federal agencies or submit discrimination charges that haven’t been prepared by the EEOC.
The federal agency responded to more than 550,000 calls to its toll-free numbers and more than 140,600 inquiries in field offices in fiscal year 2017. It believes the online system will create more efficiency for both the agency and public since it reduces the processing time and expense of paper submissions.
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“We do not expect the portal to increase the number of charges filed with us, because a human-to-human interaction is preserved as part of the process,” says Martin S. Ebel, director, EEOC’s field management programs in Houston. “We do expect it to drive inquiries to the digital system and away from in-person, telephone and other traditional inquiry methods.”
By being able to review potential charges prior to speaking with individuals who filed them, Ebel says, investigators can conduct “sharply focused interviews” and draft better charges of discrimination when someone takes the next step and files a charge of discrimination.
While it’s too soon to determine the portal’s success, this “instantaneous” system might discourage employees from resolving discrimination problems in-house, says Mellissa Schafer, an attorney at Hinshaw & Culbertson law firm in Los Angeles.
She points to a disgruntled employee who gets into a disagreement with his boss. The employee can immediately access the portal to start the complaint process instead of cooling off, sharing his feelings with coworkers and then notifying HR.
“This might be something where the employer and employee can work it out in the next day or two and everyone calms down, everything is fine,” she says. “This employee may be somebody who is overheated quickly, gets very anxious or excited quickly and may turn to emotion versus thinking about it, processing it and taking time to do something.”
The portal also has the potential of being prejudicial to employers, Schafer says. It prevents EEOC officers from taking into account the person’s tone, demeanor or mannerisms when evaluating their allegations. In some cases, she says online claims would never pass the initial steps if the same complaints were made in person or over the phone. In the end, some employers may end up wasting valuable time defending bogus charges.
“If employees feel they’re being listened to, are being heard and that something is being done, you stand a greater chance of them not going to the EEOC portal,” says Schafer. “Knowing that someone could [use the portal impulsively or] out of retaliation, I don’t see this being of any benefit to an employer.”
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Other potential problems involve portal staffing. Those handling the initial complaints must be trained and experienced, not in a clerical function, for example, and be neutral when interpreting or evaluating information, says Demitrios Moschos, a labor attorney at Mirick O’Connell law firm in Worcester, Mass.
“In principle, the portal sounds good, but the devil is in the details,” he says. “A judgment will be made based on the facts put forward. There can’t be encouragement or discouragement. My concern is that [the EEOC] will emphasize efficiency rather than neutrality.”
In Massachusetts, he says, state law mandates that employers mention all employee alternatives for reporting or filing discrimination complaints, such as the portal. But whether state law requires it or not, he believes it’s a good idea for all employers to do so to avoid employee perception that the company is hiding information from them.
He says HR’s role in receiving and addressing complaints needs to be enhanced. For example, does your policy clearly state that employees have the right to go HR with a complaint, independent of their supervisor, and avoid the chain of command? Inform workers that HR will quickly respond to their complaint and, that although they have the right to access the EEOC’s portal, they may not experience as quick of a response from the federal agency.
“Make sure your mechanisms are in place and work effectively because you can’t avoid this situation,” says Moschos, citing recent headlines of sexual harassment in the workplace. “You need a neutral system where employees feel confident that if they make a complaint, it will be addressed. That’s not what we’ve seen over the last six months. That’s a failing in our society.”
