The less-than-favorable economic times have had many unfortunate implications that reach far beyond the unemployment rate. In addition to those who can’t find work, those who can appear increasingly more disgruntled. Illustrating this fact is workplace discrimination complaints. Claims of job discrimination have risen over 20 percent since 2007 to a record 99,922 for the Equal Employment Opportunity Commission’s (EEOC) fiscal year ending on September 30th, an increase I largely attribute to the continually lagging economy. Employees seem more motivated to bring complaints because they are unhappy with their general economic circumstances.
In addition, payments made by employers to individuals claiming discrimination through settlements and lawsuits have risen as well, to $404 million for the year—a 17 percent increase since 2007.
While more claims have been filed, a smaller percentage of claims have resulted in payment to the employee. In 2010, 19.2 percent of complaints were resolved with outcomes favorable to employees, a figure that has dropped each year since a high of 22.2 percent in 2007. However, the total number of merit resolutions has risen over that period, from 16,598 in 2007 to 20,149 in 2010. The good news for employers is that 64.3 percent of 2010 EEOC resolutions found the complaint to be without reasonable cause.
Workplace discrimination refers to employees experiencing prejudicial treatment based on their age, race, sex, religion, disability or various other categories protected by federal, state or local statute. Statistics cited here refer to charges made to the federal EEOC, and do not include other complaints made only to state agencies, such as the Idaho Human Rights Commission.
In November, a number of cases were resolved in employees’ favor. For example, in Dallas, Courtesy Building Services agreed to pay a former operations manager and other women to settle a suit alleging a hostile work environment because the employer maintained a “good old boy” atmosphere where comments about women’s bodies and references to a strip club were a constant occurrence.
In Hot Springs, Arkansas, the owners of a Dodge’s Chicken Store paid $190,000 to settle a case alleging failure to provide a reasonable accommodation to a store leader who had suffered from seizures. After the employee’s doctor had restricted her from driving, the employee requested that another employee conduct the daily competitor gasoline price surveys while she handled that employee’s daily in-store duties. The storeowner denied the employee’s request and terminated her employment. In Minnesota, three state agencies were ordered to pay $574,000 for denying standard health and dental insurance to retirees over age 55, a violation of the Age Discrimination in Employment Act.
Discrimination cases can involve disputes over compensation, work assignments, promotion opportunities or termination; even inappropriate off-hand comments can expose an employer to liability.
Since the EEOC started taking complaints in 1965, race has been the most frequently filed charge every year until 2010. Last year, complaints of retaliation for discrimination proceedings overtook charges filed over race for the first time, with 36,258 retaliation charges compared to 35,890 race discrimination charges. The next highest categories were:
Sex discrimination with 29,029 complaints
Disability with 25,165
Age discrimination with 23,264.
(The cumulative total of complaints based on specific statutes far surpasses the total figure of 99,922 because many charges contain multiple types of discrimination.)
How does an employer protect oneself from this type of workplace discrimination exposure? While you cannot prevent employees, applicants and/or former employees from filing a claim against your organization, there are a number of steps you can take to protect your organization from a workplace discrimination claim in the future.
First and foremost, leaders of your organization must set a tone of absolute intolerance for discriminatory behavior in the workplace, with no exception.
You should provide in-person, interactive discrimination training to all supervisors at least once every two years. Personal training, rather than a computer module, affords supervisors an opportunity to ask questions and engage in a different manner.
Your organization’s policies must prohibit unlawful conduct, with real, clear examples of what is impermissible so employees understand what type of conduct is unacceptable. When reviewing your policies, review how address e-harassment, which is based on on-line and other computer-related conduct of employees.
Don’t let your workplace discrimination policies sit on a shelf or on a company website. Having a policy, in and of itself, is not enough. Communicate them to all levels of staff regularly. Bring them up in team meetings and include reminders in company newsletters. Today’s media provides enough reminders and examples to spark easy, natural discussion of various workplace behavior topics.
As the country continues to navigate uncertain employment waters, it’s important to ensure you’re providing a safe, inclusive environment for all employees and that your workplace discrimination definitions and policies are communicated often and are open for discussion to all. Doing so in 2012 will help mitigate a rising national issue within your workplace.
Anne B. Wilde is an employment and ERISA employee benefits attorney. She is the Principal of The HR & Benefits Advisor, PLLC, which advises employers and plan sponsors. Anne can be reached at anne@TheHRandBenefitsAdvisor.com or www.TheHRandBenefitsAdvisor.com.