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EEOC: What 2010 Statistics Predict for 2011

EEOC: What 2010 statistics predict for 2011
Authored by Heather Kim
Once again, the Equal Employment Opportunity Commission (EEOC) is reporting a record year in terms of both the number of charges filed as well as total dollars recovered for employees. For 2010, the EEOC received 99,922 charges, which is the most the EEOC has received in any year since the agency began in 1965. Following a similar pattern to 2009, the 2010 statistics showed that retaliation, with 36,258 charges, and race discrimination, with 35,890 charges, are the top charges filed by employees. Setting another record high, the EEOC recovered $319 million for individuals in 2010, which is up from $294.2 million in monetary benefits recorded in 2009.
Recent legislation, including the Lilly Ledbetter Fair Pay Act, the Genetic Information Discrimination Act (GINA), and the Americans with Disabilities Act Amendments Act, has expanded the areas and conditions regarding when the EEOC can bring lawsuits, allowing for more claims to be filed and higher monetary awards to be granted. Further, it is notable that 2010 is the first year that the EEOC handled charges brought under GINA. The increase in claims filed may also be in part because of the high rate of unemployment, as employees who are laid off or terminated and unable to find another job have created a larger group of people who may potentially file claims. On the agency’s side, the EEOC has implemented a more user-friendly system for filing claims, and has provided extensive training for its employees in an effort to be more efficient and effective in enforcing discrimination laws. In light of the rising number of claims, and the prediction that claims will continue to increase, the EEOC has made efforts to be prepared to handle the increase. Employers must similarly be prepared to address discrimination and harassment to decrease the potential for costly litigation. Federal guidelines require employers to provide “periodic” and “effective” training for all employees, in addition to having a thorough discrimination and harassment policy. Having such training can serve as a strong defense for the employer-defendant facing a discrimination claim. Failure to provide such training can actually increase liability and damages.
Employers should provide avenues for employees to report concerns of harassment or discrimination. Anonymous reporting systems are currently only required of publicly traded companies, but they are a good option for any company that is lacking an avenue for an employee to report concerns anonymously. After an employee reports a concern, the employer should investigate their complaints in a timely manner. It is important that the investigation be impartial, and for particularly difficult claims, it may be prudent to consider utilizing a third party to conduct the investigation. Whether the investigation is internal or external, it shows that your company not only takes employee concerns seriously, but also that you are committed to providing a work environment free of discrimination and harassment. If a claim should make it to litigation, the opposing attorney will have a difficult time making an argument that the investigation was anything other than impartial and timely.
The current trends of increasing claims and higher monetary awards are unlikely to change in 2011. The shortage of jobs combined with a group of potential claimants willing to go to litigation only increases the likelihood of eclipsing 100,000 charges over the next fiscal year. Thus it will be important for employers to stay proactive in providing a workplace free of discrimination and harassment. Not doing so could become very costly very quickly.
Sources consulted:
http://www.eeoc.gov

From Volume 11, Issue 1 of BCInsights

Author: Heather Kim

Once again, the Equal Employment Opportunity Commission (EEOC) is reporting a record year in terms of the number of charges filed and the total dollars recovered for employees.  In 2010, the EEOC received 99,922 charges, which is the highest number of charges the EEOC has received in any year since the agency began in 1965. Following a similar pattern to 2009, the 2010 statistics showed that retaliation (36,258 charges) and race discrimination (35,890 charges) are the top charges filed by employees. Based on all charges filed, the EEOC recovered $319 million for individuals in 2010, an increase of $24.8 million from the previous year.  

Recent legislation, including the 2009 Lilly Ledbetter Fair Pay Act, the 2008 Genetic Information Non-Discrimination Act (GINA), and the 1990 Americans with Disabilities Act, including the 2008 ADA Amendments Act, has expanded the types of claims and conditions that are necessary for the EEOC to file lawsuits, thus increasing the number of claims and awards granted.  Further, it is notable that 2010 is the first year that the EEOC handled charges brought under GINA. The increase in claims filed may also be a result of the high rate of unemployment.  Employees who are laid off or terminated and unable to find another job have created a larger group of people who may potentially file claims. On the agency’s side, the EEOC has implemented a more user-friendly system for filing claims and has provided extensive training for its employees in an effort to be more efficient and effective in enforcing discrimination laws. In light of the rising number of claims, and the prediction that claims will continue to increase, the EEOC has made efforts to handle that increase. Employers must also be prepared to address claims such as discrimination and harassment in order to decrease the potential for costly litigation.  Federal guidelines require employers to provide “periodic” and “effective” training for all employees, in addition to having a thorough discrimination and harassment policy. Having such training serves as a strong defense for the employer-defendant facing a discrimination claim. Failure to provide such training can actually increase liability and damages.

Employers should provide avenues for employees to report concerns of harassment or discrimination. Sarbanes-Oxley requires publicly-traded organizations to implement anonymous reporting hotlines, and regulations such as the Federal Sentencing Guidelines, the Foreign Corrupt Practices Act and the Dodd-Frank Act recommend implementation of an anonymous reporting solution as a best practice.  After an employee reports a concern, the employer should investigate their complaints in a timely manner. It is important that the investigation be impartial, and for particularly difficult claims, it may be prudent to consider utilizing a third party to conduct the investigation. Whether the investigation is internal or external, it shows that companies not only take employee concerns seriously, but also a committment to providing a work environment free of discrimination and harassment. If a claim should make it to litigation, an opposing attorney will have a difficult time making an argument that the investigation was anything other than a reasonable conclusion based on a good faith investigation.

The current trends of increasing claims and higher monetary awards are unlikely to change in 2011. The shortage of jobs and increase in potential claimants willing to go to litigation only increases the likelihood of surpassing 100,000 charges in the next fiscal year. Thus, it will be important for employers to stay proactive in providing a workplace free of discrimination and harassment.  


Sources consulted: http://www.eeoc.gov

 

 

TIP: Protect your organization by conducting a good-faith investigation, reaching a reasonable conclusion, and documenting your efforts for every issue reported.

BCI has conducted hundreds of EEOC-related investigations and helps organizations reduce and prevent such claims through the implementation of its anonymous incident reporting solutions.  BCI also trains management personnel on how to conduct good-faith investigations of EEOC-related issues.  Additional trainings are available on topics such as Discrimination, Harassment and Sexual Harassment, Retaliation and the prevention of workplace misconduct.


 

Click here to read the next article in Volume 11, Issue 1 of BCInsights, "Nationwide Increase of Employment Eligibility Enforcement Against Employers".

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