Framing Discrimination Claims

EEOC Claim Statistics: Actions Necessary for Preventing Employment Discrimination Claims

The EEOC recently reported that it recovered a record high of $294 million on behalf of employee claimants in FY 2009. How can you prevent becoming a target of an employment discrimination claim? Find out the six steps you can take. Your hint: The first tip involves training.

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How important is it to train your employees about their obligations under employment discrimination and harassment laws? Consider these EEOC claim statistics: For fiscal year (FY) 2009, the Equal Employment Opportunity Commission (EEOC) received over 93,000 complaints of employment discrimination and recovered a record high $294 million in back wages for the complaining employees through settlements, mediation, and other administrative resolutions. The agency also collected another $82 million through litigation. Employees alleged in these claims include all forms of employment discrimination (race, sex [including harassment], national origin, religion, age, and disability) and retaliation, involving such issues as hiring, termination, promotion, and leaves.
HR and legal experts agree that most of these employee complaints are the direct result of managers and employees making bad decisions because they do not understand the employment laws. For example, if a supervisor does not follow proper procedures to resolve a harassment complaint, you could easily end up in court defending the manager’s inaction.
(Downlaod free Equal Employment Opportunity model policy including HR best practices and legal background.)

But, compliance training can be hard to sell since the expense is clear and immediate but its benefit is often intangible and measured by a lack of complaints being filed. Still, if you do not properly train your employees in these important issues, you risk becoming an EEOC claim statistic with a weak or nonexistent defense.
Below is a breakdown of the employment discrimination claims filed in the most recent period with the EEOC, plus six simple actions you can take to avoid being added to these statistics.

EEOC Claims for FY 2009 Focus on Retaliation, Race, and Sex

Overall, the EEOC reported that 93,277 complaints were filed with the agency in FY 2009. Thirty-six percent of these claims (33,613) alleged that the employer retaliated against the employee. (Retaliation claims typically assert that an employer took some adverse action against an employee because the employee exercised a legal right, such as filing a discrimination claim. Courts often rule in favor of employees in the retaliation part of their lawsuits, even when the underlying discrimination claim is dismissed.) Race claims came in a close second, accounting for 33,579 of the total claims. The statistics also show that although overall claims were down slightly from FY 2008, the EEOC collected more money from employers on behalf of aggrieved employees.

Allegations of disability discrimination increased the most, up 10.2% from FY 2008, and these claims accounted for 23% (21,451) of the total number of discrimination claims filed. Note, though, with the recent changes to the definition of disability under the Americans with Disabilities Act (ADA), these numbers could increase even more next year. Sex discrimination claims accounted for 30% of the claims (28,028), and age claims accounted for 24.4% of the total claims (22,778).

Six Steps to Prevent Employment Discrimination Claims

Given the time and money costs, you really don’t want to be in the position of defending against a discrimination claim, even if you win in the end. Most legal experts put a price tag in the many thousands of dollars on the formal resolution of a complaint at the government agency level. Add a court battle to that, and your external legal expenses alone can quickly spiral to many times that amount. So, a better plan is to take proactive steps to prevent discrimination claims from being filed in the first place, including:
1.   Train supervisors about discrimination, harassment, wage and hour, Family and Medical Leave Act (FMLA), and other employment laws. Make sure they understand the employer’s obligations and are prepared to handle any complaints efficiently and appropriately. (Downlaod freeEqual Employment Opportunity model policy including HR best practices and legal background.)
2.   Train all other employees about their obligations under discrimination and harassment laws. Focus on what workplace behavior is acceptable and how to make complaints internally.
3.   Review every termination decision to ensure proper procedures were followed. Pay special attention to whether the terminated employee is being treated consistently with other similarly-situated employees.
4.   Don’t retaliate. Retaliation claims accounted for a whopping 36% of the EEOC discrimination claims filed, and employees often succeed with these claims even if they lose the underlying discrimination complaint.
5.   Document, document, document. Every employment decision should be documented so there is no question as to why an action was taken or how the employee was treated.
6.   Get a second opinion. Have a group or panel of outside experts you can call on when creative solutions or specialized help is needed. Make sure your attorney is part of this group. This network can be cheap insurance in avoiding the cost and aggravation of bungled compliance decisions.


Robin Thomas, J.D.
Personnel Policy Service, Inc.

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