The HR Specialist

Job bias complaints again hit record in 2011


America’s ongoing economic struggles continued to fuel the job discrimination fire in 2011.

U.S. employees filed 99,947 charges of job discrimination with the EEOC in fiscal year 2011, which ended Sept. 30, according to the EEOC. That’s the highest number of job bias complaints filed by employees in the EEOC’s 46-year history.

During the first decade of this century, employees (on average) filed about 79,000 complaints annually of race, sex, age, disability, religion or national origin discrimination. In fiscal 2010, that number spiked to 99,922, fed by the poor economy and a new EEOC outreach program encouraging workers to file claims.

The record number of claims this year resulted in a record amount of financial recoveries for people who filed workplace discrimination charges. In FY 2011, the EEOC secured more than $364.6 million in monetary benefits through its private sector administrative enforcement activities, the most ever obtained by the EEOC and $45 million more than in FY 2010. Overall, the agency secured both monetary and nonmonetary benefits for more than 19,570 people through administrative enforcement activities – mediation, settlements and conciliations.

In addition, the EEOC finished 2011 with a 10% reduction in its inventory of pending cases—the first such reduction since 2002. The fiscal year ended with 78,136 pending charges—a decrease of 8,202 charges, or 10%. In previous years, the pending inventory had increased as staffing at the EEOC declined 30% between 2000 and 2008.

The message: The EEOC is no longer the agency where charges go to die. Employers can expect more aggressive enforcement and quicker resolutions of cases.

The EEOC announced these numbers on Nov. 15, 2011 as part of the release of its annual Performance and Accountability Report (PAR).

How to Respond to an EEOC Complaint: 10 Steps to Success

Because administrative charges from the EEOC can be precursors to discrimination lawsuits, it’s critical for you to handle them properly.

Taking the charge process seriously, and defending against the allegations at this stage can increase the likelihood of a favorable determination and help prevent further legal actions.

These 10 tips will help you prepare to respond:

1. Tell the whole story. Often, an EEOC charge contains just one or two paragraphs, containing little more than conclusory allegations of discrimination. Resist the temptation to put minimal effort into your response.
It’s usually advisable to provide a comprehensive response, detailing the circumstances surrounding the employment relationship and the reasons for adverse employment actions. Try to nip the claim in the bud by giving the agency all the facts. Demonstrate that there were legitimate business reasons for your actions.

2. Use documentation. If you have documents supporting your version of events, consider including them in your response. Documentation dating from the time of the adverse employment action can be the best way of discrediting the allegations. Attendance records, sales reports and e-mail messages can all help prove that events happened as you say they did, and that the company’s concerns were bona fide.

3. Verify the response’s accuracy. Attorneys love catching an employer in a lie. Since the information you submit could be used in later legal proceedings, make sure everyone involved reviews the response and verifies the accuracy of every statement.

4. Highlight consistent past decisions. One of the best ways to demonstrate that a decision was not motivated by unlawful discrimination is to point to the same actions being taken against similarly situated employees who are not members of the charging party’s protected class. For example, if the charging party alleges that her termination was motivated by discrimination against women, tell the agency of instances when you terminated men for the same misconduct.

5. Remember, the agency doesn’t know your business. In telling your version of the events, share details about your business that will help the agency understand your actions. Think about why the charging party’s performance concerned you. Would that be readily apparent to an outsider? For example, if you are legally required to have a certain number of staff on hand at all times, explaining this will emphasize why poor attendance would be a significant problem in your workplace.

6. Maintain confidentiality . Information about the charge should be on a need-to-know basis, especially if the charging party is still employed. If you know investigators will contact employees, couch your message in terms like this: “While we do not feel there is any merit to the allegations, we respect Employee X’s right to bring this charge. If you are contacted by the agency, you should cooperate and be completely honest with the investigator.”

7. Be prompt and cooperative. Don’t put off preparing your response. Anti-discrimination agencies are less inclined to provide extensions than they once were. Failure to respond to a charge in a timely way can result in an adverse determination.

8. Work with legal counsel. Because a discrimination charge can be the first step in a chain of legal actions, you must protect your company’s interests. Many employers ask their attorneys to investigate and prepare the response. At the very least, have an attorney review a draft before you submit it.

9. Contact your insurer . Insurance policies require insured parties to provide prompt notice of claims. Many employment-practices liability policies define claims to include discrimination charges. Failing to apprise the insurer of a charge could result in denial of coverage, not only for the charge but all subsequent legal claims.

10. Preserve all documents. Courts are increasingly imposing harsh sanctions on companies that fail to adequately preserve relevant evidence. When you receive an administrative charge, collect and preserve all documents that could be relevant. You may also want to suspend any routine practices that might result in the destruction of relevant records, particularly electronic information like e-mails, voice mails and Internet usage records.

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