Last week I attended the annual meeting of the Labor & Employment law sections of the North and South Carolina Bars here in Asheville. While at the meeting, I went to a presentation by Lynette Barnes, Regional Attorney for the Charlotte District of the EEOC. Ms. Barnes previewed the EEOC’s Fiscal Year 2012 statistics regarding number of charges, types of charges, and lawsuits. (The EEOC’s fiscal year runs from October 1 to September 30 each year.) While I tend to be more excited about statistics than the average person on the street, the trends in charges and lawsuits are instructive to employers. As described below, Ms. Barnes provided the statistics for the nation and for the Charlotte District. The Charlotte District includes most of Virginia (excluding Northern Virginia), all of North Carolina, and most of South Carolina (excluding southern South Carolina). One disclaimer, these statistics are not yet available on the EEOC’s website. This post is based on my notes from Ms. Barnes’ presentation. You will be able to find the official numbers here: http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm when they are issued.
Notable Numbers and What They Teach Us:The number of nationwide charges decreased in FY 2012. As some of you may know, fiscal year 2011 was a record-breaking one for the EEOC. Nationwide in FY 2011, the EEOC saw 100,389 charges filed with 8147 of those in the Charlotte District. The good news for employers is that the number of charges in fiscal year 2012 was down slightly. Nationwide, employees and/or applicants filed 99,632 charges in fiscal year 2012. The number also decreased slightly in Charlotte to 7865. The fact that the number of charges decreased is a positive indicator for the economy. I have long held the belief that terminated employees or employees who were not hired are less likely to file a charge if they are able to move on relatively quickly to another job. Over the past couple of years, I have also noticed an increase in the number of charges by current employees filed in an attempt to gain some protection from termination. The decrease in charges likely means more individuals are finding jobs and fewer employees feel they are on the brink of termination.
The EEOC filed fewer but likely more complex lawsuits in FY 2012. If the EEOC finds “cause” after the investigation of an EEOC Charge and conciliation attempts fail, the EEOC has the option of either bringing suit on behalf of the charging party or issuing a right to sue letter for the charging party to take to an attorney to sue on his/her own. In FY 2011, nationwide, the EEOC brought between 250 and 300 lawsuits on behalf of plaintiffs. In FY 2012, that number fell to 122 cases. The most likely reason for this decrease is the EEOC’s continuing emphasis on pursuing “systematic” discrimination. While the cases were fewer in number, most likely they were larger in scope. The take away for employers is two-fold: First, be aware that even if you receive a charge alleging disparate treatment in a single incident, the EEOC will be focused on whether the incident at issue is only symptomatic of a larger problem. Once an employer receives an EEOC charge, the EEOC may expand that charge as it sees fit. Not uncommonly, the EEOC will pull the EEO-1 report of employers who receive a charge and begin requesting information regarding what the EEOC perceives to be statistical disparities in the employment data that may or not be related to the charge at issue. Second, employers should also realize that if the EEOC finds “cause” as a result of a single employee charge brought against an employer, the chance of the EEOC filing suit in single-plaintiff litigation is slim. In fact, the EEOC filed suit in less than 1% of charges received in FY 2012.
Nationwide, over 70% of charging parties alleged violations of Title VII of the Civil Rights Act of 1964. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, sex, national origin, religion and color. It also prohibits retaliation against employees who make discrimination complaints or are witnesses in investigations of these discrimination complaints. Despite the amendment of the Americans with Disabilities Act and the predicted increase in age discrimination charges given our aging workforce, the vast majority of charges filed still focus on Title VII. Of all the Title VII Charges, when broken down by protected category, race remains the most prevalent, followed by sex, national origin, religion and color, respectively.
Retaliation is the most common discharge claim nationwide and the most common harassment claim in Charlotte. When the nationwide charges are broken down by adverse employment action claimed, discharge is the most prevalent. Among discharge claims nationwide, retaliation was the most common type of discrimination claimedmore so than discharge due to race, sex, disability or age. Further, and perhaps more surprising, in the Charlotte District, retaliatory harassment was the most popular harassment claim. The lesson for employers here is clear – you need to be thoughtful when dealing with employees who have made internal or external claims of discrimination, requests for accommodation, or participated as a witness in an internal investigation. These employees need not be protected from all disciplinary action in the face of misconduct or poor performance. However, human resources and other supervisory personnel should be mindful to question immediate supervisors about any history of protected activity prior to making termination or disciplinary decisions and to be certain the action is not only justified but can be explained and proven to be legitimate later. When conducting harassment training, human resources professionals would also be wise to add a section regarding retaliatory harassment. Often tempers flare when a supervisor feels he or she has been unjustly accused of discriminatory behavior. Many times the underlying discrimination claim has no merit, but the supervisor’s anger or rash decision in light of the accusation can give the employee a viable claim.
Granted, all of these statistics may bring particular delight to a former mathlete like me, but they also provide a reality check for employers that:The focus on systematic discrimination is real and even a run of the mill EEOC Charge can quickly turn into requests for information in search of systemic problems; Employers are still more likely to see a claim of race or sex discrimination than anything else and should weigh risks accordingly; The risk for retaliation claims should be a focus of all termination decisions and training efforts; and Maybe, just maybe, the economy really is improving. I’ll end on that happy note.