LawyersUSA

WASHINGTON – The recent jump in the number of federal discrimination charges filed with the Equal Employment Opportunity Commission in the last fiscal year – the largest annual increase since the early 1990s – has employment lawyers urging companies to take a careful look at their workplaces.

Overall, there was a 9 percent increase in discrimination charges filed with the agency.

Although it's too soon to know for sure what's behind the numbers, the jump is something employers should take seriously, experts tell Lawyers USA.

"It should cause employers to step back and take notice of what might be behind the numbers," said Rae T. Vann, General Counsel of the Washington, D.C.-based Equal Employment Advisory Council, a nonprofit association of employers aimed at advancing programs to eliminate workplace discrimination. "But it's probably too early to tell [whether] the numbers are identifying trends."

Donna Lenhoff, Legislative and Public Policy director of the National Employment Lawyers Association, a plaintiffs' group, said the rise in filings should encourage employers to evaluate whether there is discrimination in their workplaces.

"Employers should try to figure out what is going in their workforces," Lenhoff said. "They should ask: 'Do [we] have a problem? Does this warrant renewed attention?'"

The increase includes hikes in all types of discrimination charges.

There were more than 4,000 more retaliation charges seen by the agency in 2007 than the year before – an increase of 18 percent and double the number of complaints in 1992. Retaliation is the second most common discrimination complaint filed with the agency, second only to race.

Other areas saw double-digit increases as well. Race claims were up 12 percent to the highest level in 14 years. Age-based claims were up 15 percent, disability claims increased by 14 percent, and claims based on religion, national origin and gender were up 13, 9 and 7 percent respectively. Pregnancy charges surged 14 percent to a record high level.

Announcing the data earlier this month, Commission Chair Naomi C. Earp said employers need to do more to stamp out potentially discriminatory conduct.

"Corporate America needs to do a better job of proactively preventing discrimination and addressing complaints promptly and effectively," Earp said. "To ensure that equality of opportunity becomes a reality in the 21st century workplace, employers need to place a premium on fostering inclusive and discrimination-free work environments for all individuals."

Why the increase?

Vann said a number of factors could have influenced the increase, though it is impossible to determine an exact cause from the raw data.

For example, the increase in reduction-in-force measures companies have instituted in the current economic slump could be a factor, she said, because discrimination claims often follow layoffs.

She said the rise in claims could also indicate an increased awareness among employees about discrimination, and the increased availability of information on the web about filing such claims.

But Vann said she took particular notice of the retaliation figures.

"You get the sense that retaliation is on the rise, and that one is most concerning for employers," she said. (For a more detailed story on the rise in retaliation claims, see "Retaliation claims prove popular," Lawyers USA, Feb. 25, 2008. Search words for Lawyers USA website: Fresno and Yee.)

Still, retaliation is not always an easy issue for employers to handle.

"It's something that is fairly difficult to monitor unless you are watching closely," Vann said. "To the extent that you are seeing more retaliation claims being filed, I think it should serve as a warning signal to [review] policies and usher in new training programs."

Lenhoff said that the increases demonstrate the need for more resources at the EEOC and other state and local agencies that enforce workplace discrimination laws.

"That is something that we have been advocating for a long time," she said, citing a 2007 NELA report showing that employees and their lawyers encounter obstacles with the EEOC's charge intake and investigation procedures.

"We found a really appalling, pervasive resistance to filing [of charges] by EEOC personnel," Lenhoff said. "The need for better enforcement by the EEOC is well documented and has been for a long time. And to some extent … it's not that they are not trying. It's just that they have not been given the resources that are necessary to do their job."

In the report for fiscal 2007, the EEOC also announced it recovered approximately $345 million in total monetary relief for charging parties, up 26 percent from the prior year's total of $274 million.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com