When the economy declines, it’s a safe bet that the number of discrimination claims filed against employers will increase. And as we are currently in the worst economic climate since the Great Depression, employment law attorneys weren’t surprised when the Equal Employment Opportunity Commission (EEOC) reported this week that it received an unprecedented number of workplace discrimination charge filings against private-sector employers in fiscal year (FY) 2010.
“Employment discrimination law has always been counter-cyclical, meaning that when there is a downturn in the economy, there is generally an uptick in the number of discrimination claims,” says Susan Fentin, a partner with Skoler, Abbott & Presser, P.C. in Massachusetts, and an editor of Massachusetts Employment Law Letter. “Since this is the most significant downturn in recent history, it’s no surprise that there has been an increase in the number of claims nationally. Our national clients have generally experienced this as well, not only with regard to EEOC claims, but also with claims filed with state agencies.”
On Tuesday, January 11, 2011, the EEOC reported that 99,922 private-sector workplace discrimination claims were filed during FY 2010, which ended on September 30, 2010. While the agency has experienced a record number of filings, the number of files waiting to be processed has grown only slightly.
“We are pleased to see that our rebuilding efforts are having an impact on how efficiently and effectively the Commission enforces the civil rights laws protecting the nation’s workers,” said EEOC Chair Jacqueline A. Berrien. “Discrimination continues to be a substantial problem for too many job seekers and workers, and we must continue to build our capacity to enforce the laws that ensure that workplaces are free of unlawful bias.”
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination
Retaliation takes over top spot
The EEOC reported increases in all major charge categories against private employers in FY 2010. Those include claims under Title VII of the Civil Rights Act of 1964, the Equal Pay Act (EPA), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA).
In FY 2010, retaliation claims outnumbered all other categories of claims. For the first time since the EEOC was created in 1965, race discrimination claims were not the most frequently filed charge. Also for the first time, the agency accepted claims under the new GINA law and received 201 charges.
“Whatever interpretation one gives to these statistics, they suggest that employment discrimination litigation has become a risk factor that employers should take notice of,” said Jonathan Trafimow, an attorney with Moritt Hock and Hamroff L.L.P. in New York. He is also author of the chapter on discrimination in the HR Guide to Employment Law. “While there are no magic answers, employers can take steps to decrease their likelihood of being sued, and to increase their likelihood of prevailing if they are sued.”
Trafimow recommends employers take the following steps to avoid lawsuits:
- maintain updated equal employment opportunity policies;
- train all employees (including managers) on the policies; and
- move swiftly to investigate alleged violations.
State-by-state comparision of 50 laws in all 50 states including discrimination laws
Some good news for employers
Fentin said while the employers she and her firm represent are seeing an increase in discrimination claims being filed, they aren’t witnessing a proportionate increase in the number of decisions against employers.
“The large number of claims also has meant an increase in the length of time between the time that the claim is filed and the time that the EEOC or state agency issues a decision,” Fentin said. “We have not seen, however, an increase in the number of probable cause decisions. The EEOC and parallel state agencies appear to be able to identify where an employer has tried to treat its employees fairly, consistently, and for business-based reasons, and can support its decisions with solid documentation.”
Fentin recommends that employers redouble their efforts to document employment actions to avoid or defend against discrimination claims. “Documentation is frequently the key to a successful resolution, and the challenge for employers, especially those of you with large numbers of lower-paid workers, is to be sure that supervisory personnel keep records that support their legitimate reasons for action,” she said.
What does this mean though? Does that mean that every single one of those claims are bogus? It says to me that companies are NOT handling layoffs or downsizing well and EE’s are angry and upset.