Does your workplace discriminate “unconsciously?” Courts aren’t sure, says Fortune magazine. But the EEOC isn’t waiting to find out.
Despite years of the government, courts, and society in general fighting it, patterns of discrimination still exist at many businesses. Workers seem to be held down based on race, gender, or other factors.
But while some will assume this is just discrimination, others are blaming a “complex stew of social, historical, and cultural legacies” that companies can’t be expected to correct,” says a recent article in Fortune magazine. In other words, if discrimination is happening, it’s happening unconsciously.
“There are studies that show that the strongest predictor of whether an opening is filled by a man or woman is whether the previous incumbent was a man or woman,” says Fortune. Statistics don’t lie, but what do they mean? They may indicate bias, but the question is, according to Fortune, can we rely on statistics alone to prove discrimination?
In these “disparate impact” situations (where the suing employee isn’t alleging there was intent to discriminate, just discriminatory result) most courts have been reluctant to rely just on statistical imbalance.
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EEOC on the Prowl
Not so the EEOC. The agency is gearing up to pursue unconscious (“systemic” or “pattern and practice”) discrimination cases, says Catherine Padalino, vice president and Employment Practices Liability manager for Chubb Group of Insurance Companies, writing on IndustryWeek.com. How will it be evidenced?
First, she says, the EEOC’s new EEO-1 report gives a more detailed breakdown of corporate diversity at different organizational levels than has been seen before, and the agency intends to use that information to uncover likely cases of systemic discrimination.
Furthermore, Padalino adds, the agency offers “performance incentives” to local investigators who identify and pursue class-wide systemic discrimination claims. So even though you are a well-intentioned company, it’s time to take a look at your organization the way the EEOC might look at it.
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Where There’s Smoke, There’s …
The agency does not go after organizations randomly—it wants the biggest bang for its prosecuting buck, so it looks for smoke. Statistical smoke, which in their mind, may mean lawsuit smoke.
Here are some of the factors they’re considering in deciding whether to target you for an audit:
- Your statistics with regard to hire, termination, and promotions
- Your diversity as seen against the diversity in your hiring area
- Recent cases brought against your organization alleging discrimination
- Recent, especially high-profile, cases brought against other organizations in your industry
- Being in a traditionally “male-dominated” industry
If any of these are out of whack, in EEOC’s eyes, you may be charged with unconsciously or systemically discriminating … without ever intending to do it!
Defense a Costly Burden
If so, start shockproofing your budget. Systemic discrimination cases tend to be brought as class actions. (No surprise—there aren’t any meaningful statistics until there are a lot of people to count.) Class actions are generally not good news for anyone except the lawyers who bring the suits, but they do mean one thing for employers for sure—major legal expenses.
“Class actions can be much more expensive to fight than single-employee actions,” Padalino notes. “A company might spend hundreds of thousands for a class action defense, versus more like $10,000 for an individual discrimination charge,” she says.
What can your organization do to ward off an EEOC investigation? We’ll give you recommendations in tomorrow’s issue of the Advisor.