In employment discrimination lawsuits, the business always loses, even if that loss is a diminished public reputation. Consequently, creating a work culture and environment for employees that encourages diversity and discourages employment discrimination in any form is critical for your success.
Retaliation Discrimination Lawsuits Are Most Common
Statistics from the Equal Employment Opportunity Commission (EEOC) show claims regarding retaliation discrimination topped the list again in 2018. Illegal retaliation occurs when someone complains about discrimination (or other illegal behavior), and the company punishes the complainer.
Here’s the complete breakdown from EEOC from 2018 complaints:
- Retaliation: 39,469 (51.6% of all charges filed). Historically, retaliation complaints are the most common ones filed with the EEOC.
- Sex: 24,655 (32.3%). Employment discrimination by gender rose to the second most commonly filed complaint.
- Disability: 24,605 (32.2%)
- Race: 24,600 (32.2%)
- Age: 16,911 (22.1%)
- National Origin: 7,106 (9.3%)
- Color: 3,166 (4.1%)
- Religion: 2,859 (3.7%)
- Equal Pay Act: 1,066 (1.4%)
- Genetic Information: 220 (.3%)
Sexual Harassment Charges Increase
The agency also received 7,609 sexual harassment charges—a 13.6% increase from 2017 and it attributes the increase to the #metoo movement pushing harassment into the spotlight. The EEOC reports obtaining $56.6 million in monetary benefits for victims of sexual harassment in 2017.
Overall employment discrimination claims filed with the EEOC have been declining since 2017. If the economy takes another downturn and people have trouble finding work, those numbers may return to the historic levels they reached earlier in the decade.
- Distraction: The organization’s staff will spend months gathering and preparing documents while an internal investigation is conducted, and time is invested in fighting the claim.
- Depression: Employee morale will suffer under the constant pressure of a lawsuit.
- Blemished reputation: An employer known as an employer of choice for recruiting and retaining desirable employees—whether found guilty or innocent—may be under a cloud.
- Actual attorneys’ fees: These can cost as much or more than an eventual settlement, if the employer is found guilty.
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 unattributed fallout.
Employees who do not believe their complaint was adequately addressed by their employer during a normal internal complaint process—or in situations where the harassment or discrimination behavior continues—may file a claim with the EEOC. Only a tiny fraction of charges filed with the EEOC result in a lawsuit, says diversity communications consultant Gail Zoppo. So, even if the EEOC issues a “right to sue,” to an employee, the individual may have to invest significant resources in legal counsel, and only 1% of employees win their case.
How Employers Can Prevent Employment Discrimination
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 taking a few simple steps that could have prevented years of pain.
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, preventative measures, and practices to create a healthy workplace culture, can work in their favor. The employer may escape significant damage if they demonstrate 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 policy should 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 policy should 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.
- 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 to indicate 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.
- Act in a timely manner. Respond to an employee complaint about employment discrimination, harassment, or retaliation in a timely, professional, confidential, policy-adhering manner. Address the employee complaint all the way 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, and employee preventative training. Your good faith efforts to prevent employment discrimination, harassment and retaliation may serve you well—increasingly important in the litigious future.
Law Office of Bryan A. Chapman
Bryan A. Chapman, Esquire
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