Work in the Time of COVID-19: FAQs for Employers

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The U.S. Equal Employment Opportunity Commission (EEOC) recently issued a statistical report in regard to its performance during its fiscal year 2014. The EEOC is the federal agency that enforces Title VII, the ADA, and other federal employment laws. The EEOC’s statistical report and press release reveal important information about current trends, results obtained by the EEOC, and the EEOC’s strategy and agenda.

The EEOC reported that it received 88,778 private sector charges in fiscal year 2014, which was a decrease of approximately 5,000 charges from fiscal year 2013. As was the case in fiscal year 2013, retaliation claims made up the highest percentage of all charges. By way of breakdown, in fiscal year 2014, retaliation claims made up 42.8% of all charges; race charges were 35%; sex charges were 29.3%; disability charges were 28.6%; age charges were 23.2%; national origin charges were 10.8% and religion charges were 4%. The remaining charges were based on color, the Equal Pay Act, and the Genetic Information Non-Discrimination Act. The total percentage of charges add up to more than 100% because some claims were made up of discrimination charges on multiple grounds according to the EEOC. The EEOC reported a decrease in the number of resolved claims, which it says was likely due to the government shutdown and the effects of sequestration. It is important to note that the EEOC reported that it hired more than 300 staff at the end of fiscal year 2014.

In addition, the EEOC touted the results of its national systemic enforcement program. During fiscal year 2014, the EEOC completed 260 systemic investigations, which resulted in 78 settlements and conciliation agreements with approximately $13,000,000 in monetary relief. In addition, the EEOC reported that in fiscal year 2014 it had its largest proportion of systemic suits on its active docket since tracking began in fiscal year 2006.

Now that we know what the EEOC did last year, what can we learn from it? In regard to the EEOC hiring additional staff, it should result in quicker investigations and determinations on charges. It may also result in the EEOC becoming more aggressive in pursuing claims as a result of having additional resources.

If history repeats itself, we can anticipate retaliation claims also comprising a significant percentage of the charges in 2015. Employers need to ensure that employees, who make discrimination or harassment complaints, participate in investigations of complaints, or who file charges, are not treated any differently than other employees with regard to employment actions, such as discipline, promotion, demotion, evaluations and terminations.

It is further suggested by the information released that a point of emphasis will be on claims of systemic discrimination. Upon receipt of a claim of systemic discrimination, employers should have an even higher sense of importance and urgency in responding to the charge, as the chance of the EEOC pursuing litigation appears significant.

As charges related to discrimination and retaliation are likely to continue to increase, it is imperative for employers to have written anti-discrimination/retaliation policies that are carefully enforced and periodically reviewed with all employees, both supervisors and subordinates. It is critical that all employees know the reporting procedure for complaints; that supervisors understand the policy for responding to these complaints; and that it is emphasized that there is to be no retaliation against employees who file complaints. Take the time to properly analyze employment-related decisions to make sure they are supported by legitimate and lawful business reasons that can be used in the defense of a claim. Consulting with employment counsel prior to making these decisions can oftentimes head off a potential claim or better position an employer to defend a claim. Finally, if an employer receives a charge from the EEOC, a thoughtful, accurate and complete response is critically important.

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