Prevent Employment Discrimination and Lawsuits

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.

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, says Shanti Atkins, an ethics and compliance specialist. These include the costs of:

    • 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.
    • DepressionEmployee 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

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



Why Are Employment Discrimination Lawsuits Rising So Rapidly?

4 Reasons Why Employment Discrimination Cases Are on the Rise

Employment discrimination lawsuits are rapidly rising. Here is why.

Employment discrimination isn’t always illegal. In fact, you are free to discriminate against people who come in late, people who are unqualified, and people who insist on wearing socks with sandals. Illegal employment discrimination is limited to just a handful of things.

The Federal Civil Rights Law (known as Title VII) prohibits employment discrimination on the basis of race, color, gender, national origin, and religion. You’ll note that sexual orientation is not explicitly listed.

However, the courts are divided as to whether or not sexual orientation falls under gender discrimination, and some states and cities it clear that discrimination on the basis of sexual orientation is illegal. Regardless, you should consider discrimination on the basis of sexual orientation illegal.

In addition to Title VII discrimination, pregnancy, disability, association with someone who has a disability, and genetic information are all protected under federal law.

 

Employment Discrimination Lawsuits Are Rising Rapidly

The EEOC reported that employment discrimination lawsuits are on the rise and have been for several years. While the figures for 2017 are not yet available, it would be surprising if they dropped off. Here are the figures for 2016:

 
  • Retaliation: 42,018 (45.9 percent of all charges filed)
  • Race: 32,309 (35.3 percent)
  • Disability: 28,073 (30.7 percent)
  • Sex: 26,934 (29.4 percent)
  • Age: 20,857 (22.8 percent)
  • National Origin: 9,840 (10.8 percent)
  • Religion: 3,825 (4.2 percent)
  • Color: 3,102 (3.4 percent)
  • Equal Pay Act: 1,075 (1.2 percent)
  • Genetic Information Non-Discrimination Act: 238 (.3 percent)
 

1. Increased Awareness

If you don’t know something is illegal, you won’t file a legal complaint about it. The original discrimination laws were passed more than 50 years ago, and yet not everyone knows their rights. As more people learn, they can recognize when a boss or coworker behaves illegally.

Additionally, as employers increase training programs designed to prevent discrimination and harassment, people recognize harassment they faced in the past.

 

Increased awareness doesn’t indicate an increase in actual bad behavior. It merely indicates that more people are aware of their rights. Hopefully, as awareness increases, more people will understand their responsibilities as well, and actual cases will decrease over time.

 

2. Increased Coverage

This goes along with increased awareness. As people see reports of discrimination in the news, they realize they are not alone, and there is something they can do about it. In 2017, the “New York Times” had over 1600 articles where the word “discrimination” appears. Not all of these, of course, are employment cases, but it brings the ideas to the forefront. The “Washington Post” had over 2000 articles in the same time period, including the following headlines:

 
 

If you are reading these headlines every day, even if you don’t read the articles, you can infer that discrimination is everywhere, and it brings up questions. For instance, if it’s racial discrimination to have a certain dress code at a restaurant, is it also racial discrimination to have a certain dress code at your office? You may not have considered that as a possibility before.

 

The other thoughts these headlines spark is the idea of a big financial gain. The Missouri prison worker who won $1.5 million is not a usual case. Most discrimination cases don’t result in big payouts, but if you think that you might have a big winner of a case, you may be more willing to file a lawsuit.

 

3. Social Media

In the past, you could complain to a few friends, complain to HR and maybe hire a lawyer, and that was it. Today, if you can get a tweet or a Facebook post to go viral. Everyone can become their own public relations firm today.

 

You can find out about harassment and discrimination cases that happened across the country (or the world) to people you have never met and knew nothing about until a viral post landed in your social media feeds. This can encourage people to feel like they are not alone. It can also put pressure on companies and organizations to change their behavior.

 

4. Employer Panic

Employers are reading the same headlines and attending the same training classes that employees do. The number one reason for a discrimination lawsuit in 2016 was “retaliation.” Illegal retaliation occurs when someone complains about discrimination (or other illegal behavior), and the company punishes the complainer.

 

Employers know that they can face serious consequences for violating discrimination laws. In an attempt to make the problem “go away” they can retaliate against employees by punishing them for complaining.

 

For instance, Karen complains that her boss, Bob, is harassing her, and the company moves her to a new position with less prestige. Or, Javier’s boss tells him to stop speaking Spanish on break. When Javier refuses, his boss gives him a lower performance rating. Heather goes on maternity leave, and when she comes back, she found that her boss gave all of her best clients to other employees.

 

All of these are examples of retaliation, and companies often retaliate in panic or denial. The idea is, that if you can just shut up the complainer, the problem will go away. Sometimes this works, as people would rather find a new job and leave than fight it out with a lousy employer, but if they decide to sue, the employer gets hit with a retaliation charge.

 

Does This Increase in Employment Discrimination Cases Mean You Should Sue?

If you’ve been illegally discriminated against, you certainly have the right to your day in court. You can file a complaint with the EEOC, or you can hire an employment attorney. But, keep in mind that winning an employment discrimination lawsuit is difficult and expensive.

 

Of those cases that make it to court, the employee wins in only 1 percent of the cases. While that sounds dreadful and hopeless, keep in mind that most cases settle out of court. Many are sealed, so you have no idea how much money, if any, the employee received. But, huge sums are not common, and you have to pay your lawyer as well unless the EEOC takes your case.

 

Cases can also take years to work their way through the courts, during which time you are under stress. It’s often logical to just walk away. However, this does not mean you should let harassment and discrimination go.

 

Everyone needs to make his or her own choice. But it does mean that you need to be careful how you act in the workplace. People won’t stand for illegal discriminatory behavior anymore. And that’s a good thing.

 

————————————————

 

Suzanne Lucas is a freelance journalist specializing in Human Resources. Suzanne’s work has been featured on notes publications including Forbes, CBS, Business Insideand Yahoo.

 



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

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bchapman@baclaw.com

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Workers Win Only 1% Of Federal Civil Rights Lawsuits At Trial

A new analysis of employee lawsuits finds a low success rate for discrimination, harassment, or retaliation, and highlights the U.S.’s most-sued employers.

Workers Win Only 1% Of Federal Civil Rights Lawsuits At Trial

Claims of employee mistreatment are center stage, between sexual harassment and discrimination scandals in the TV business and in Silicon Valley, and now the Trump Administration’s retrenchment on LGBT protections in the workplace and banning of transgender people in the military.

But according to a new analysis of employment cases by legal research service Lex Machina, very few employees who file federal job discrimination, harassment, and retaliation claims even make it to court, and only 1% of those claims eventually succeed in court. A majority of cases are settled, employers prevailed on summary judgment roughly 13 percent of the time, and only 192 damage awards out of 72,000 cases included punitive damages.

THE LONG ROAD TO TRIAL

Employees who gather the courage to take action against their employer begin by filing a charge with the U.S. Equal Employment Opportunity Commission, typically within 180 days from the time the discrimination took place. Through a fact-finding process, the EEOC decides whether or not a charge is strong enough to take to trial. An overwhelming number of allegations do get the EEOC’s Notice of Right to Sue, which is a thumbs-up to proceed.

But few of these cases actually become lawsuits. For fiscal year 2016 (Oct. 1, 2015 through Sept. 30, 2016), employees filed 97,443 charges, and the EEOC issued 81,129 Notices to Sue (83.3%), according to records provided to Fast Company. For that same period, meanwhile, Lex Machina counted only 7,239 cases that went onto lawsuits—less than a tenth of the charges EEOC gave a green light to over the same time frame.

Lex Machina also examined data on the lawsuits themselves, and found an even smaller fraction of victories for plaintiffs.

Over an even longer period—from January 2009 through July 2017—Lex Machina found that of 54,810 cases that were filed and closed, employees bringing the suits won just 584 times in trial, or about 1% of the total. Employers won 7,518 cases, about 14%. Another 3,883 cases, or 7%, were settled on procedural grounds, mostly dismissing the employee’s claims.

Most cases from 2009 to the present ended in nebulous settlements.

What happened to the rest of the cases? No one knows for sure why 78% of cases were dismissed by either the employee or both the employee and employer, but Lex Machina assumes that almost all of those 42,742 cases were settled. But there is no legal requirement to file the terms or even publish the existence of a settlement, so it’s impossible to know for sure how these cases panned out.

Most settlements probably awarded money to the employee, according to Brian Howard, Lex Machina’s legal data scientist. But that doesn’t mean the settlement was a win for the employee.

“We don’t know how much money, what other terms the employee had to agree to, how much they originally sought, how often personal circumstances force the settlement, whether they got any feeling of vindication, etc.,” Howard wrote in an email. “Any settlement amount would likely have to address substantial legal fees, so a plaintiff’s actual recovery might be small.”

It’s not clear why so few employee charges move on to court. One reason may be because the costs of litigation to plaintiffs are often far higher than the actual damages. Plaintiffs, especially those newly out of a job, may be more willing to take a settlement than to pursue a costly and lengthy court trial. Or the cases may not be lucrative enough for an attorney to take on, says Howard.

Only rarely does the EEOC itself bring a case on behalf of the employee–usually for cases that have wide-ranging significance. For instance, the EEOC just sued Time Warner Cable and Charter Communications, charging them with firing an employee over her disability, in violation of the Americans with Disabilities Act of 1990.

EEOC said its legal staff resolved 139 lawsuits and filed 86 lawsuits alleging discrimination in fiscal year 2016. In total, it recovered $482 million for victims of discrimination, including $347.9 million recovered through mediation, conciliation, and settlements; $52.2 million obtained through litigation; and $82 million for federal employees and applicants.

EEOC has also pursued several LGBT related cases. But the Justice Department’s assertion last week that LGBT people are not covered under sexual discrimination laws—the same day President Trump announced that transgender people would be barred from the military—could be just the beginning of changing policies and priorities at the EEOC. Many top posts are being filled with Trump Administration appointees; and while funding has stayed the same, the White House Office of Management and Budget has ordered a reorganization of EEOC that may portend future cuts.

THE REASONS PEOPLE SUE

Discrimination claims make up the majority of complaints that go on to lawsuits, at 87%. Several U.S. laws protect employees against discrimination; Title VII of the U.S. Civil Rights Act of 1964, for instance, prohibits discrimination based on six criteria. They are, in order of number of EEOC complaints: race and sex (the vast majority), national origin, religion, and color. Another law, the Age Discrimination in Employment Act of 1967, prevents discriminating against people over 40 years old. Other laws prohibit discrimination based on criteria like disabilities or being pregnant.

…The second largest category of cases, after discrimination, is retaliation, such as getting fired or demoted for complaining to the employer or the EEOC about discrimination: These represented 66% of all claims. Claims of harassment, including sexual harassment, make up 35% of legal cases filed.

If you’re wondering why those shares add up to over 100%, that’s because many cases fall into more than one category: About half the cases filed since 2009 were for both discrimination and retaliation.

Overlapping claims of discrimination, retaliation, and harassment in U.S. lawsuits filed from 2009 to present. [Graphic: courtesy Lex Machina]

WHO GETS SUED THE MOST

Based on an analysis of cases between 2009 and 2017, Lex Machina has a rough idea of which companies and government agencies have been sued the most. The most commonly named defendants, listed alphabetically, are:

  • AT&T
  • Bank Of America
  • Boeing
  • CVS Pharmacy
  • FedEx
  • Home Depot U.S.A.
  • JPMorgan Chase Bank
  • Life Insurance Company Of North America
  • Sears, Roebuck And Co
  • Target Corporation
  • United Airlines
  • United Parcel Service
  • Walmart Stores
  • Walgreen Co.
  • Wells Fargo Bank

Notice the absence of Silicon Valley companies. Despite all the attention on sexual harassment in the tech sector, so far there have been relatively few legal actions brought by its employees. That could be because most tech firms are smaller than the industrial and commercial giants listed above.

Compared with tech company workers, most of the employees of larger American corporations can face a heavier burden when bringing discrimination or harassment suits. For instance, women in lower-paying jobs who are often subject to harassment have a much harder time fighting against it, since they don’t have the means to risk leaving or losing a job, as FiveThirtyEight documented.

The most-sued government agencies are:

  • City Of New York
  • City Of Philadelphia
  • District Of Columbia
  • New York City Department Of Education
  • United States Postal Service

…In the end, it’s hard to know how well the court system is working to protect employees from unfair treatment. It’s hard to know, for instance, of those cases that are ultimately settled, how many do justice to the employee? For all the data the EEOC and Lex Machina have collected, they show how much we still don’t know.

ABOUT THE AUTHOR

Sean Captain is a Bay Area technology, science, and policy journalist.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com