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EEOC CHARGES AT A RECORD HIGH

A few weeks ago, the Equal Employment Opportunity Commission (EEOC) issued their charge statistics and the number of charges of discrimination filed with the agency in 2008 was at an all time high of 95,402.  This is up from 82,792 in 2007 and 75,768 in 2006.  When you figure that there are 250 work days in a year, this means that over 381 charges are filed every day and nearly 48 every hour. This is an astounding statistic.

Granted, the economy has a lot do with the high number of charges as the previous high in the last 10 years was in 2002 when there were 84,442 charges filed with the EEOC.

What the EEOC Is
Before going into the reasons people file discrimination charges it is a good idea to make sure we all know what the EEOC is and what an EEOC charge of discrimination means.  The EEOC is an administrative agency of the Federal Government whose primary mission is to investigate alleged violations of Title VII of the Civil Rights Act, the Americans with Disabilities Act, The Age Discrimination in Employment Act, the Pregnancy Discrimination Act and the Equal Pay Act.  They are not the Labor Board (as many people call it) and they are not a court of law.  

The EEOC will investigate claims of discrimination. These are usually handled by investigators who are not attorneys.  The investigators will make initial determinations of the validity of charges of discrimination.  In the cases where there is evidence of validity to the discrimination complaint, the investigator may attempt to negotiate a settlement. 

The EEOC is required to investigate all complaints of discrimination.  The EEOC does have subpoena power and may issue a subpoena for records if it takes too long for a charged company to respond to an EEOC request for information. They also have the right to conduct a portion of their investigation on the company premises and interview witnesses. 

To Mediate or not to Mediate
When a charge of discrimination is filed, the company is offered the option of mediation and the EEOC is encouraging both parties to agree to mediation. The mediation is non-binding.  It is also confidential as the mediation side of the EEOC will not divulge the information discussed during mediation with the investigation side of the agency.  The company has the choice of accepting mediation or bypassing it by preparing a positions statement (this will be discussed later).

However before deciding to mediate, know that the objective of mediation is to come to an agreement on the discrimination charge. Many employment attorneys and HR professionals state that every EEOC case should go to mediation as a way to determine where the person making the claim is coming from.  If there are skeletons in the closet, they may come out during mediation.  Understand that mediation does take some time and will be costly even if there is no monetary agreement made during the mediation.  It is probably advisable to utilize mediation when the complaint is filed by a current employee.

The biggest argument against mediation is that a great majority of the discrimination claims come from people who were fired by the company.  If the company has a clear cut case and a strong business reason for the termination, then there may be nothing to mediate. However, if the charge involves a current employee, there may be more of an incentive to mediate the claim.

The Position Statement
Companies charged with discrimination are immediately put in a defensive position and there is an option to bypass the mediation process and elect to prepare a written position statement that addresses the charges alleged by the complainant.  The position statement should include a detailed account of the reason for the actions taken with as much back up documentation as possible that supports the company’s position. 

The Lawsuit
A lawsuit can be filed in one of two ways. The EEOC also has the power to file a lawsuit in behalf of the plaintiff and will represent the plaintiff in a Federal lawsuit against the company. For example, last week Nordstrom agrees to pay nearly $300,000 to 10 former employees to settle a harassment complaint in which the EEOC found that Hispanic and Black employees were subjected to ethnic and racial slurs in the workplace.  In this case a lawsuit was filed by the EEOC and an out of court settlement was agreed to.  For more information on this case – click this link. https://www.eeoc.gov/press/4-16-09a.html.

When the EEOC makes a decision on the claim, the charging party is sent what is known as a “right to sue letter.” Regardless of the outcome of the investigation, the claimant is told that he/she has 60 days to file a lawsuit in a Federal Court. 

Why do People File Charges
Every EEOC investigator will tell you that the primary reason people file charges of discrimination is because the claimant feels as though he/she was not treated fairly.  They were yelled at, screamed at, demeaned or humiliated.

Filing a charge of discrimination is a quick and easy way to get back at the company who treated them badly or terminated them.  Filing a charge costs nothing except a few minutes of time. And being unemployed, the former employee has a lot of time on their hands. 

Many think the only reason people file charges is because they think it is a quick way to make a buck.  Some people who file charges with the EEOC are a bit confused as they think they are filing a lawsuit and think that they will receive some sort of settlement.  This is not the case.  The EEOC must investigate all claims and they have a tremendous backlog of cases. So the time it takes to have a claim resolved often takes 9 months to a year.

Limit Your Exposure
In dealing with your people, think of two things.  First, remember that everyone is a member of a protected class.  Therefore, anyone can file a claim of discrimination – even white American born males under the age of 40. The second thing to know is that people file discrimination complaints because they feel they were not treated fairly.  Then go back to the first statement.  If everyone is a member of a class that is protected by the Equal Opportunity Employment laws, then it is easy to file a complaint and come up with a protected class status as a reason for discrimination.  

These difficult economic times are very stressful. 
The number of conflicts we are handling has risen dramatically in recent months.  And since many people have a tendency to make poor decisions under stress, it follows that the number of complaints filed with the EEOC are also up. Treat all people with respect at all times.  Allow them to maintain their dignity when they walk out the door.

Thanks for reading the McKenzie Mailer.  Let us know if we can be of assistance in keeping the lawyers away form your door.    

Bob McKenzie
President
McKenzieHR
potential@mckenziehr.com