Private and public employers paid $439.2 million dollars in 2020 to resolve discrimination charges filed by the Equal Employment Opportunity Commission (”EEOC”). Despite the pandemic, the EEOC filed 67,448 discrimination charges in 2020. The 2020 charges break down as follows:
Retaliation: 37,632 (55.8%)
Disability: 24,324 (36.1%0
Race: 22,064 (32.7%)
Sex: 21,398 (31.7%)
Age: 14,183 (21.0%)
National Origin: 6,377 (9.5%)
Color: 3,562 (5.3%)
Religion: 2,404 (3.6%)
Equal Pay Act: 980 (1.5%)
Genetic Information: 440 (0.7%)
These charges represent only those the EEOC accepted and pursued. The EEOC empirically accepts only a small fraction of the discrimination charges filed.
The denied charges, however, do not fade off to oblivion as the EEOC grants those employees the right to sue privately. The $439.2 million dollars paid last year does not include these lawsuits, nor does it monetize the loss of goodwill and workplace productivity. Proper preventative measures can significantly mitigate the risk of an employment discrimination charge. Recommended measures include:
- Anti-Discrimination Policy: Implement a strict anti-discrimination policy, and publish it conspicuously in the employee handbook or even common areas. The policy should inform employees that retaliation is considered a form of discrimination and will not occur or be tolerated. Encourage employees to report all perceived discrimination. Additionally, the policy should reference the EEOC’s hotline or website for further information. Require all employees to sign an acknowledgement that they read and understand the policy.
- Reporting and Investigation Procedures: Formulate a thought-out procedure for reporting and responding to discrimination claims. Publish the procedures conspicuously in the employee handbook and include it as a separate employment onboarding item.
Ideally, the policy should include multiple methods for an employee to report discrimination in case the direct supervisor is the alleged offender; outline the steps the company will take to investigate the discrimination; and articulate potential disciplinary actions against the alleged offender. Document and save all documents, communications, and other investigation materials. Disseminate information provided by the reporting employee on a need-to-know only basis. Some complaints may warrant consultation with a third-party vendor or employment law attorney to assist in the investigation.
- Continual Supervisor Training: Train all supervisors, and consider including team leads with no decision making authority, on prevention of, identifying, and responding to discrimination. Consider training available via the EEOC; The EEOC offers a fee-based training institute (https://eeotraining.eeoc.gov) or customer specific training (https://www.eeoc.gov/eeoc-outreach-program-coordinators).
- Continual Employee Training: Train employees on similar topics as managers, with a focus on detailing the company’s focus on maintaining a safe workplace and enforcing a strict anti-discrimination policy.
- Enforce the Anti-Discrimination Policy and Follow all Procedures: Enforce the anti-discrimination policy uniformly with no exceptions. Follow all steps identified in the investigation procedures regardless of the perceived merits of the employee’s claim. Document the entirety of the investigation; do not cherry pick information.
- Do Not Retaliate. An employer cannot retaliate against an employee for reporting unlawful discrimination. Retaliation includes termination, demotion, change in job duties, change in work schedule, location transfer, pay or benefit reduction, or denial or a promotion or raise. As the EEOC statistics show, this is the most common charge. A claim for retaliation may exist even if the claim of discrimination is found to be frivolous. The protected conduct in a retaliation claim is the reporting.
Strong preventative and investigation measures may avoid EEOC charges and lawsuits. Additionally, anti-discrimination policies foster a respectful and inclusive workplace, which increases productivity and decreases the attrition rate.