In employment discrimination lawsuits, the business always loses. Consequently, creating a work culture and environment for employees that encourages diversity and discourages employment discrimination in any form is critical for your success. Employers need to adopt several serious guidelines for the prevention of discrimination in the workplace. Don’t wait until you are the target of a lawsuit before you follow a few simple steps that could have prevented years of pain.
Employment Discrimination Lawsuits Rising
Let’s start by looking at the scope of the problem in employment discrimination lawsuits. U.S. Equal Employment Opportunity Commission (EEOC) statistics reveal that the highest number of employment discrimination charges in its 45 year history were filed in the fiscal year ending on September 30, 2010. The EEOC’s statistics about employment discrimination continue to demonstrate a three year trend of increased charge filing and litigation. Driven by the dismal economy, a bigger EEOC enforcement budget, and employee-friendly revisions to EEO laws, the employment discrimination lawsuit trend is expected to continue.
Key findings in the employment discrimination statistics reveal that in 2010:
- Retaliation discrimination is the most frequently cited form of employment discrimination (36,258 charges). Historically, retaliation complaints filed with the EEOC increased 44%, from 22,690 charges in 2003 to 32,690 in 2008.
- Retaliation is followed closely by race discrimination (35,890 charges).
- Employment discrimination hit new records for sex, national origin, religion, and disability discrimination charges.
- Employment disability discrimination charges increased nearly 20%, due in part, to the 2008 Americans with Disabilities Act Amendments Act (ADAAA).
- The EEOC handled its first employment discrimination charges brought under the Genetic Information Nondiscrimination Act (GINA).
- The EEOC received almost 31,000 charges alleging unlawful harassment; 11,717 were sexual harassment charges. The majority of harassment charges alleged some form of harassment, other than sexual harassment, such as race, national origin, or religious harassment.
“The EEOC also reported that it secured more than $404 million in monetary benefits for individuals - the highest level of relief obtained through administrative enforcement in the Commission's history,” according to Shanti Atkins, Esq., President and CEO of ELT, Inc., a company that specializes in ethics and compliance training.
Rising Costs of EEOC Suits Expensive for Employers
From an employer’s perspective, settlement costs to resolve an EEOC claim fade in the face of additional, often unrecorded, costs to the employer’s organization. Atkins says that these include the costs of:
- the distraction of an organization’s staff for months as documents are gathered and prepared, an internal investigation is conducted, and time is invested in fighting the claim,
- the loss of employee morale while under the constant pressure of a lawsuit,
- the potential loss of an employer’s reputation as an employer of choice for recruiting and retaining desirable employees, whether found guilty or innocent, and
- attorneys' fees which can cost as much or more than an eventual settlement, if the employer is found guilty.
In addition to these hard-to-quantify costs, Atkins says that the average single claimant lawsuit results in defense costs of $250,000 and a jury verdict of $200,000. Other sources place the average verdict awards even higher, at nearly $900,000 in 2007, with the average settlement nearly $550,000. In any case, jury awards are expensive for employers. Class action lawsuits, which are also increasing, generally result in lower per claimant awards but can cost an employer millions of dollars in cash and untold millions in the above employee costs listed.
While the potential costs of employment discrimination lawsuits are high, on the plus side, employers have some recourse. According to Gail Zoppo, at DiversityInc.com, employees who feel they are experiencing employment discrimination should first complain to their employer. This gives the employer the opportunity to investigate the alleged employment discrimination and provide recourse through their normal complaint resolution process.
Employees who do not believe that their complaint was adequately addressed by their employer, and in situations where the harassment or discrimination behavior continues, may file a claim with the EEOC. Zoppo, in consultation with employment-relations attorney Bob Gregg, a partner at Boardman Law Firm., says that of the 95,402 charges that were filed with the EEOC last year, the EEOC only filed 325 lawsuits. So, even if the EEOC issues a “right to sue,” to an employee, the individual may have to invest significant resources in legal counsel.
Otherwise, one can hope that common sense might indicate that an attorney, whose services are often paid for by an employer’s settlement costs or a portion of a jury award, would take on cases that demonstrated some merit.
What Employers Can Do to Prevent Employment Discrimination
Employers who put strong measures in place to prevent and address employment discrimination, harassment, and retaliation may avoid EEOC charges and lawsuits. Further, their employment discrimination policies, preventions, and practices can work in their favor in an employment discrimination lawsuit. If the employer can demonstrate the following preventative actions, the employer may escape significant damages.
Employers are advised to prevent employment discrimination and create a workplace culture that discourages employment discrimination, harassment, and retaliation, with these actions.
- Implement and integrate a strict policy that makes employment discrimination of any type unacceptable in your workplace. The policy needs to cover employment discrimination, harassment, and retaliation. The policy should include a process for reporting any incidents of employment discrimination, harassment or retaliation to the company. Preferably employees are given several methods for reporting incidents in case their supervisor is involved in the employment discrimination matter.
The employment discrimination policy should also communicate how an employee complaint will be handled with an outline of steps. The employment discrimination policy should spell out disciplinary action that will be taken with offenders. The employment discrimination policy should also discuss the nature of retaliation and stress that retaliation is also a form of discrimination. Finally, the employment discrimination policy should contain an appeal process for employees who are dissatisfied with the outcome of their complaint.
- Train your managers in the implementation of the anti-discrimination policy with the expectation that prevention is their responsibility. A manager’s role is to create a work environment and culture in which employment discrimination, harassment, and retaliation do not occur. Managers must recognize signs and symptoms that discrimination, harassment, or retaliation is occurring and know how to address these illegal actions. Managers must thoroughly understand the company’s policy and know how to recognize work situations that might escalate into employment discrimination, harassment or retaliation situations.
Atkins says the training must address all forms of employment discrimination and harassment in a unified manner rather than addressing each as a silo. Employment discrimination, harassment, retaliation, bullying, anger, and potential violence should all be addressed together as unacceptable in your workplace. Effective training must teach that all of these concepts and behaviors integrate, intersect, and are woven together to create a supportive, nondiscriminatory, employee-friendly work environment.
- Mandatory employee training should address many of the same issues as the managers’ training relative to employment discrimination. Cost-effective online training solutions are available for portions of this employee training. All employees must sign off on a training record and to indicate that they are aware of and understand the employer’s policy and complaint process.
- Establish cultural expectations and norms. Creating a work environment that is free of employment discrimination, and all forms of harassment and retaliation should be integral in employee job descriptions, the goals in the performance development planning process, and in employee review and evaluation.
- Respond to an employee complaint about employment discrimination, harassment, or retaliation in a timely, professional, confidential, policy-adhering manner. Address the employee complaint through to appeal, when necessary.
As with any employment situation that could result in litigation, document all aspects of policy training, complaint investigation, hiring and promotion practices, management development, employee preventative training. Your good faith efforts to prevent employment discrimination, harassment, and retaliation may serve you well – increasingly important in the litigious future.