The EEOC recently published its charge statistics for 2013 on the heels of an updated enforcement plan released at the end of last year. The statistics reveal a number of important lessons for employers in today’s enforcement-minded administrative climate.
At a macro level, EEOC charge-filing continues at a hot pace. The total number of discrimination, harassment, and retaliation charges was nearly 94,000. 2013 represents the fifth straight year total charges have exceeded 90,000. The good news is that total number of charges declined slightly for the second straight year. The bad news is that charges remain 25% higher than the pre-recession low in 2005. More bad news: while charges, cause determinations, and EEOC litigation are down from the previous year, the EEOC collected a record $372 million through conciliation efforts. In other words, the EEOC is devoting its full attention to those cases that appear to have merit and is collecting more and more money on behalf of aggrieved employees.
What are some of the recent trends? Retaliation claims seem to have the Commission’s full attention, representing one of three areas where total charges increased in 2013. Retaliation charges now represent a staggering 41.1% of all charges filed with the EEOC. Retaliation charges have increased 72% since 2005. Employers should view this trend as a cautionary sign – employees are more and more aware of their rights, and adverse action in response to complaints about unfair treatment continues to be a focus for the EEOC. Other areas that continue to be increasingly troublesome for employers since 2005 include discrimination on the basis of color (up 194%), disability (74%), religion (50%), sex (32%), and age (29%), as well as harassment of all kinds (31%).
And don’t forget about the Genetic Information Nondiscrimination Act (“GINA”). While GINA is relatively new, and charges represent only a small slice (.4%) of the overall EEOC caseload, the number of GINA charges is increasing at an alarming rate (up 66% in the past three years). Anecdotally speaking, it appears that many of these charges stem from employer inquiries into employee family health history in connection with preemployment examinations. Employers must understand that family health history is deemed “genetic information” for purposes of GINA.
EEOC’s charge statistics confirm the necessity for robust equal employment opportunity (“EEO”) programs, including effective and up to date policies, regular and meaningful training for all personnel, aggressive responses to internal reports of inappropriate conduct, and preventive measures to protect against retaliatory conduct. In addition, given the EEOC’s focus on more subtle types of discrimination (e.g., color discrimination, criminal background check issues, gender identity issues, etc.), current policies and training programs must be updated to reflect these new trends. If you have not updated your policies in the last several years or have not conducted training recently, do not be surprised when you become a part of the statistics!
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