The EEOC Has Been Busy; Here’s How To Avoid Being Another Statistic

By David N. Goldman

Last month, the Equal Employment Opportunity Commission recently updated its charge statistics (the total number of discrimination claims filed with the agency) for 2013.

This information comes at the heels of an updated enforcement plan released late last year. With the benefit of a little time, a deeper look at these numbers reveals some important messages for organizations looking to focus their compliance efforts.

For math geeks, the EEOC’s annual update is a gift. Here are some statistics that seem particularly relevant to employers:

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  • Total charges — The total number of discrimination, harassment, and retaliation charges received by the EEOC was 93,727 – the fifth consecutive year the numbers topped 90,000. The good news is that 2013 is the second year in a row that the total decreased. The bad news? Total charges are still 25 percent higher than the pre-recession low in 2005.
  • Show me the money — The EEOC seems to have embraced the “less is more” approach. While the number of charges, reasonable cause determinations, and litigation filed are down from 2012, the Commission increased the amount it collected from employers through conciliation to a record $372 million.
  • Where are the biggest risks? — It would be tempting to answer this question in one word – retaliation. Retaliation claims were one of only three categories of charges whose numbers increased in 2013 and now represent an amazing 41.1 percent of all charges filed with the agency. Yet taking a broader look, there may be a more important trend. Charges dealing with supervisor decisions (discrimination/retaliation) seem to far outnumber those dealing with conduct such has harassment. For example, there were six times as many retaliation charges and three times as many race discrimination charges than sexual harassment charges.
  • What’s hot — The saying “the more things change, the more they stay the same” may apply here. Since the recession started in 2005, charges based on skin color have increased more than any other – 194 percent. Other categories that outpaced the 2 percent average increase in all charges during the time period are: disability (74 percent), retaliation (72 percent), religion (50 percent), sex (32 percent), harassment of all types (31 percent), and age (29 percent).
  • Up and comers — Charges of discrimination based on genetic information under GINA are still a small percentage of the total (.4 percent), but the number of charges is growing fast – a 66 percent increase in just three years.

Best practices

These statistics, when combined with the EEOC’s priorities, can help human resource professionals fine tune their compliance efforts. The following are some suggestions to keep in mind:

  1. Many employment law training efforts begin and end with preventing harassment. Given there are many more incidents of discrimination, a wider array of training topics is needed.
  2. When prioritizing training and other compliance efforts, focus on the specific topics that generate the most charges and the statutes with charge numbers on the rise.
  3. Go beyond the obvious. The EEOC is now focusing on more subtle types of discrimination and expanding the reach of traditional protected categories in new ways (e.g. criminal background checks and family status). Policies and training programs that are limited to simple messages of “don’t discriminate based on race” or give examples of overt discrimination only will not help managers fully comply.
  4. Investigations are more important than ever. With many complaints dealing with less obvious types of discrimination, investigations that dig under the surface are crucial. Make sure your investigation team has the skills needed to go deep.

This was originally published on Littler Mendelson’s Workplace Policy Update blog© 2014 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.

David N. Goldman is a Shareholder in the San Francisco office of the law firm Littler Mendelson. He has advised management in all areas of employment and labor law for more than 15 years. He now focuses his practice on helping employers prevent employee-related problems before they become lawsuits. David is also the managing shareholder of the Littler Learning Group, which is devoted to meeting clients' employment law and corporate compliance training needs. Contact him at dgoldman@littler.com.

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