Five Trends Create Roadmap for Employer Compliance in 2013
The Equal Employment Opportunity Commission (EEOC) just released its FY 2012 charge numbers, and—for the third straight year—charges of employment discrimination reached nearly 100,000. These figures represent the highest numbers the agency has seen in its 47-year history.
There was a slight decline this past year, but it’s a small—I’d say negligible—decrease over last year’s numbers.
- FY 2010: 99,922
- FY 2011: 99,947
- FY 2012: 99,412
Source: EEOC Fiscal Year 2012 Performance and Accountability Report
TOP FIVE RISK AREAS
The message for employers is clear: employees have grown increasingly comfortable going to the EEOC to have their concerns addressed. Most often, however, they pursue this route only after their employers have failed to address their concerns internally.
And the EEOC is getting smarter about the ways in which it handles and processes charges as well as how it uses litigation to make the greatest impact for the largest number of employees.
Three Dominating Risks
The EEOC numbers help employers understand the risks that are most pressing and the risks that are emerging. Three risk areas continue to dominate and should remain a focus for employers in 2013.
- Retaliation. What shouldn’t be surprising—considering all that is going on in the regulatory and enforcement world—is that retaliation claims continue to top the charts. The EEOC received 37,334 retaliation charges, forming 37.4 percent of all charges. Retaliation has now held the first-place position for three years running. And despite a slight decline in charges overall, this is one of handful of areas that actually increased in 2012. (To read NAVEX Global’s research on retaliation, click the link for our Retaliation in the Workplace survey report.) Retaliation is one of the easiest and most subjective claim types out there; and with recent Supreme Court decisions dramatically expanding what constitutes retaliation and who is in the zone of interest, employers are not likely to see numbers decline anytime soon. For individual organizations the risk posed by retaliation will only increase unless they get serious about retaliation training, prevention, and monitoring.
- Race. Race takes second place as the most frequently cited charge type. The EEOC’s commitment to pursuing systemic discrimination claims (or challenging discriminatory policies and practices) means that employers must remain focused on race in 2013. Unfortunately, employers (and some very well-respected ones) continue to rely on policies and practices that unfairly exclude qualified minorities from jobs. Three of the major systemic discrimination settlements that the EEOC resolved in 2012 were race based. In 2013 don’t assume that a policy or practice is okay just because it has been in place for a long time. Rather, carefully vet the standards you are using to assess people for jobs, promotions, and other conditions of employment. Make sure the standards are fair and legal.
- Sex. Sex (which includes sexual harassment and sex and pregnancy discrimination) is another charge type that actually increased in 2012—by nearly 2,000 charges. Some of the increase is attributable to more men filing charges of sexual harassment (from 16.1 percent in FY 2011 to 17.8 percent in FY 2012). Managers are not always as receptive to claims brought by men—increasing the potential for liability and punitive damages. Employers should carefully review their manager-training programs and ensure that all managers understand how to properly handle complaints of harassment and discrimination—regardless of whether the complaint comes from a woman or a man.
Two Trends to Get Ahead of Now
In addition to the three hot charge types, there are two trends that employers should be addressing now. Not only have these areas garnered the attention of the EEOC, but employee rights have recently expanded in both realms.
- Disability. Disability claims continue to increase year over year. As disability rights continue to expand, employers should expect to see charges continue to rise. The 2008 amendments to the Americans with Disabilities Act (ADA) broadened employee rights and increased employer obligations. Many employers may still incorrectly believe that the law has no real bite. The reality, however, is that things have changed. Cases like Keith v. County of Oakland (finding a deaf applicant’s rights under the ADA may have been violated when Oakland County revoked its job offer to hire him as a lifeguard) highlight the importance of evaluating your internal practices: making sure that your processes for handling accommodation requests are sound and that your managers don’t engage in disability discrimination is the best way to mitigate related organizational risk. Getting employers to take disability discrimination seriously is an EEOC priority; in the coming years, the agency plans to look into an array of disability issues (including defenses commonly relied on by employers).
- Transgender and sexual orientation. Even though Title VII does not expressly cover sexual orientation, the tide is shifting. The EEOC has publically stated that over the next four years it will pursue the application of Title VII sex discrimination provisions to lesbian, gay, bisexual, and transgender individuals. And these are not empty promises. The EEOC took the position in Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives that discrimination against an individual because that person is transgender is discrimination because of sex. The Macy decision has the potential to impact the EEOC’s enforcement and litigation activities and is applicable to all federal agencies and departments.Combine all of that with expanding rights at the state level, and the roadmap is clear. If they haven’t already done so, employers should start evaluating their current equal employment opportunity policies and procedures as well as consider the impact that the expansion of rights will have on the delivery of benefits.
For additional resources, our partner Littler Mendelson produces an “Annual Report on EEOC Developments: Fiscal Year 2012” that contains additional detail on the 2012 figures.
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Ingrid Fredeen is a vice president within the Ethical Leadership Group, NAVEX Global’s advisory services division. She has been the principal design and content developer for NAVEX Global’s online training course initiatives utilizing her more than 15 years of specialization in employment law and legal compliance.