A few weeks ago, we told you how our founder, Natalie, is the sole private attorney invited to present at some of the TWC’s Conference for Employers series this year. These seminars, which are being held across the state over the next several months, detail the various business compliance issues our state’s oversight agency plans to focus on.
But since we know not every business can attend one of these events in person (and because changes feel like they’re happening at light speed right now), we also shared our plans to offer two ongoing things to you:
- A series of posts covering the topics from the conference. This is #2 in that series.
- A live monthly class via Zoom with the Treaty Oak team to update you on the latest info. You can register for those classes below.
Our initial post explored wage issues in depth. This second post in our series deals with Title VII of the Civil Rights Act and investigations, explaining what you need to pay attention to if you want to avoid agency violations.
Ready to dig in?
Title VII and Investigation Matters You Need to Understand to Remain in Compliance
There are a number of issues surrounding Title VII and investigations that workplaces should be aware of, and they run the gamut. Recently, there was even a wee executive order about workplace investigations you should get the lowdown on.
Constitutional scholars are baffled by these orders, and the average employer just wants to understand what needs to change to be in compliance. But in compliance with what?
With all of the recent blowback on DEI and the Executive Order, do I still have to follow Title VII?
Over the past few years, DEI (Diversity, Equity, and Inclusion) has become a bit of a buzzword, and it is something the current Administration seems keen on eliminating – or at least reigning in. Since Title VII deals with many adjacent issues, you might wonder if it falls into the same category – and if you can pull back on compliance matters related to Title VII.
Short answer: absolutely not.
But what about the executive order?
Still no.
Title VII is a 66-year-old law that sets a minimum floor for non-discrimination based on protected classes, and all businesses are still required to follow it. A potentially surprising example of this? White men are protected by Title VII because of their race and gender.
When is a business obligated to follow Title VII?
Generally, civil rights obligations under Title VII come into play if your business has 15 or more employees. In Texas, however, some protections are triggered with just one employee.
How does Title VII relate to investigations?
Title VII defines a number of protected classes. If you receive a complaint of harassment or discrimination in the workplace about a protected class, the law demands that you conduct an investigation and take reasonable action based on the findings.
What are the requirements for conducting an investigation?
An investigation involves collecting evidence, interviewing people, reviewing documents, and making conclusions. But you have to do all of it lawfully. And it has to be conducted by someone legally permitted to do so.
Hiring a third-party investigator is recommended to ensure unbiased investigations, but it is not required – you are allowed to conduct an internal investigation.
Just don’t use an external HR consultant for this work, as it is a jailable felony… which is a pretty bad look.
What are the legal implications of not conducting an investigation?
Failing to conduct an investigation can lead to serious legal consequences because you can’t claim defenses if you did not fulfill your obligation to investigate.
When should an investigation be conducted in cases of harassment claims?
Some laws say immediately, and some say promptly. Our translation of this, based on years of experience working on these types of investigations, is that you should lawfully initiate an investigation in the first 2-3 days.
Should an investigation be conducted if an employee quits and claims harassment on their way out?
Yes, an investigation should still be conducted. This is because the outgoing employee just put you on notice about a potential bad actor in your workplace.
Do businesses need to have a reporting system for harassment claims?
Having a reporting system is crucial for receiving harassment claims. It should be accessible and ensure that reports are received by more than one person to avoid conflicts of interest.
What constitutes retaliation, and why is it significant?
Retaliation occurs when an employee is treated differently after making a claim, even if the claim is unfounded. Retaliation claims are far easier to prove, but the same damage model applies. This means that mishandling them can be quite expensive.
How are penalties for Title VII violations assessed?
If you are penalized, it will be assessed per employee.
Can Title VII obligations result in violations related to wages?
Yes. This is something that employers actually need to be quite careful of.
Additional penalties may arise from wage violations, improper deductions, or any other illegality.
How do Texas laws on discrimination and harassment play a role?
In Texas, discrimination is a form of harassment with disproportionate outcomes based on protected classes. Additionally, Texas has a new sexual harassment law that allows personal asset attachment for employers of one or more people if they should have known about the harassment. Your employee’s attorney will get to pick if they want to use federal law, state law, or both.
Suitably nervous about your organization’s compliance with Title VII and how to handle required investigations related to claims? We hear you – these are thorny issues that you do not want to mess up.
Whether you want to make sure your processes are set up to prevent these kinds of problems in the first place or you have a looming investigation and want to make sure it’s handled correctly, Treaty Oak is here to help. And stay up-to-date with all the latest changes by joining our monthly Zoom sessions.
