I keep waiting for the day that employment discrimination claims disappear. We spend a ton of time training employees to prevent and avoid discriminatory conduct, and the proper behavior is pretty intuitive. So, logically, employment discrimination should have been eradicated, like polio and smallpox.
It would be terrible for my business if discrimination cases went away because defending them is much of what I do. But no worries―there isn’t much chance of employment discrimination disappearing. The Equal Employment Opportunity Commission (EEOC) received about 100,000 charges in 2012, up from 75,000 in 2005. Religious discrimination is the fastest- growing category of charges, fed by a rising fear of those who practice Islam and the misplaced view that, unlike race or sex, a person can just change religion. The EEOC is putting extra enforcement effort into that area.
Retaliation claims have doubled since 1997, now comprising 38 percent of all EEOC charges filed. This, too, is a matter of human nature that HR professionals must handle carefully. There are few things more frustrating than successfully defending a discrimination claim, only to face a valid retaliation claim because an unfairly accused supervisor has decided to take revenge―snatching defeat from the jaws of victory.
Sex discrimination and sexual harassment is the area that gets the most preventive attention. More than 30 percent of all EEOC charges are filed on the basis of sex. Lawsuit recoveries aside, the EEOC reports that it collected more than $280 million in 2011 and 2012 by resolving sex discrimination charges through its administrative process.
Sex discrimination and harassment cases run a wide gamut, and nobody is immune from them. Who would be smarter about dealing with the issue than Yale University, right? But last year the college had a series of sexually harassing episodes, including the Delta Kappa Epsilon fraternity marching to a co-ed dormitory chanting, “No means yes; yes means anal.” Because it took insufficient action to stop such conduct, Yale had to agree to a consent decree requiring it to do more about sexual harassment on campus.
Similarly, you’d think Hollywood would have learned by now that sexual harassment is expensive. But it seems the same players are getting sued again and again. I mean, which TV show is less racy than The Price Is Right? Yet another model has sued the show!
This time, model Lanisha Cole made the mistake of going onstage without her microphone. Her irate producer followed her into her dressing room without knocking and proceeded to reprimand her―ignoring the fact that she was wearing only a thong while the lecture was occurring. Humiliated, she quit the show; her claim has been settled.
Finally, Desperate Housewives may have ended, but the litigation against the series creator lives on. You may recall that actress Nicollette Sheridan had complained to ABC-TV that she was struck in the head by the show’s producer, Marc Cherry; soon after, her character, Edie Britt, was killed―an action she claimed was retaliatory. The case went to trial, and eight of the 12 jurors found in her favor―one short of the nine votes she needed for a verdict. A variety of posttrial motions and appeals occurred, and bottom line, her retaliation claim is set to return to trial in December. I hope I get to see it on pay-per- view.
Discrimination and retaliation cases come in all shapes and sizes. When you analyze your liability, there are legal technicalities and procedural issues to consider. But the fundamental question is almost always “How will this look in front of a jury?” Will a jury approve of a manager reprimanding an employee while she’s wearing nothing but skimpy underwear and is too shocked to do anything but freeze in place? Will a jury approve of firing an employee right after she complained that you struck her in the workplace?
If those questions were asked on a quiz show, I’ll bet every contestant would get them right. Our job is to ask ourselves the same questions before we take action we may live to regret later. 
Think first, take action later―a simple motto to live by.
Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco. He may be contacted at schickman@freelandlaw.com.
The bottom line is that there continue to be people in positions of authority who are, essentially, idiots. Their behavior reflects this core lack of good judgment and discretion, and their ego does not compel them to adjust their behavior. As a result, there are many claims ahead…….