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What Every Organization Must Know About Equal Employment Trends
Deanna Hartley, 06-22-2009
The unstable economy and the introduction of a new administration are just a few factors influencing recent developments in equal employment opportunity law — the outcomes of which could affect virtually every workplace in the United States.
Shanti Atkins — president and CEO of ELT, a company that specializes in online legal compliance training — and Bruce Sarchet — shareholder at Littler Mendelson, an employment law firm — outlined these trends in a Human Resource Executive webinar titled “2009 EEO Trends: Understanding New Laws and ‘The Obama Effect.’”
High Unemployment Rate Drives Up Claims
The unemployment rate, which has been hovering around 9 percent — and is higher for minorities — is the highest it has been in 25 years, Atkins said.
“As the unemployment rate goes up and job opportunities dwindle, the rate of litigation and the attractiveness of bringing a claim against an employer is also on the rise,” Atkins said.
This in turn can have a tangible financial impact on businesses. Atkins said the average defense cost for single plaintiff litigation can cost around $250,000 through trial.
“[Research] shows the unemployment rate is the single largest predictor in employment law case filings, and that every 1.5 percent increase in unemployment rate drives an approximate 21 percent increase in employment law case filings.”
Rise in Retaliation Claims
The Equal Employment Opportunity Commission (EEOC) reported a 16.2 percent increase in discrimination litigation last year — and the most significant increases were in the areas of retaliation and age discrimination, Atkins said.
“The courts have come up with a few situations when an employer could retaliate against an employee, not only by taking a tangible action such as a termination, but outside of the workplace — for example, filing a false criminal claim against an employee or providing false job references,” Sarchet said.
Race-Based Claims Won’t Go Away
“You might think this is the great-grandfather of all types of discrimination claims, but it’s still the No. 1 type of claim you see on a percentage basis being filed in the U.S. today,” Sarchet said.
In fact, he said more than 35 percent of all claims the EEOC gets are related to race discrimination.
“The perception is there amongst your diverse workforce statistically that they are being treated differently. We need to be prepared and ready to respond,” Sarchet said. “We can’t neglect race discrimination even though it’s been around for a long time and you may think you’ve done everything you possibly can do in this area.”
Sexual Orientation and Gender Identity
President Obama has publicly supported the Employment Non-Discrimination Act (ENDA), a new law at the federal level that’s expected to be reintroduced in the near future.
“[ENDA] would add to Title VII of the Civil Rights Act of 1967 as protected categories sexual orientation and perhaps gender identity,” Sarchet said. “This would broaden the protections available under employment discrimination laws.”
Currently, many state laws prohibit discrimination based on sexual orientation and gender identity.
Implementing workshops and training programs for managers, supervisors, as well as rank-and-file employees, is one step toward creating an inclusive work environment, Sarchet said.
