How to stem discrimination claims

The Equal Employment Opportunity Commission has reported that discrimination claims have increased in the past decade and reached "historic" levels in the last couple of years. The EEOC attributes the significant rise in claims to multiple factors, including greater accessibility to the EEOC, poor economic conditions, increased diversity in the labor force, increased employee awareness of their rights and changes to the EEOC's intake practices.

Last January, the EEOC announced a record high number - 95,402 - of workplace discrimination charges filed during the 2008 fiscal year, which ended Sept. 30. This marked a 15-percent increase from the previous fiscal year. And last month, the EEOC reported the second highest level of workplace discrimination charges § 93,277 § for the 2009 fiscal year.

Charges based on race, retaliation and sex-based discrimination continue to be the most frequently filed charges. Of particular note, charges based on disability, religion and/or national origin hit record highs. After topping the chart in 2008, age-based discrimination claims were at their second-highest level ever in 2009.

While the EEOC is handling record levels of workplace discrimination charges, President Obama, in an effort to invigorate the Civil Rights Division of the U.S. Department of Justice, announced last fall that he's aiming to step up high-impact enforcement of civil rights.

This effort includes expanding the ranks of experienced civil rights attorneys in the division, weighing in on private discrimination lawsuits via friend-of-the-court briefs and using "testers" to pose as applicants for housing or employment to determine an entity's compliance with discrimination laws.

Most recently, Obama requested an $18 million budget increase for the EEOC to hire new investigators, attorneys, mediators and support staff to process the backlog of workplace discrimination charges. Obama also requested an 11-percent hike in the Justice Department's Civil Rights Division to enhance federal civil rights enforcement.

Increased enforcement coupled with a lackluster economy is expected to continue the record number of discrimination claims at the agency level and in state and federal courts. During tough economic times, claims of discrimination and retaliation rise because more people lose their jobs and have trouble finding new employment. This affects the likelihood of claims in two ways: first, employees who remain employed are less likely to file a complaint than those who have already been terminated; and second, terminated employees who might be inclined to move on may be more likely to file a claim when they cannot find a new job.

As a result of these administrative decisions and economic realities, businesses must take even greater care in crafting and implementing policies and proceeding with discipline and termination decisions. Five basic tips can help keep employers out of hot water:

1. Document, document, document. Always keep precise records of all employment decisions and changes to policies.

2. Do not use layoffs to shed "problem" employees. Layoffs should be conducted based on the needs of the organization and objective criteria that can be documented. Once an employer decides how many positions are available within a certain department or job classification, it should use seniority or productivity levels to determine who stays. Don't target "problem" employees and use a layoff to terminate their employment when it should have been done before documented performance problems.

3. Check those policies. They should be updated annually, at least (and even more frequently when there are major mid- year changes in the law). If an organization's policies are out of date, employers should update them but avoid taking actions that are inconsistent with other policies. Any deviation from policy should be amply justified by the particular circumstances.

4. Respect employees. If an employee's performance is subpar, clearly spell out expectations and the path to getting back on track. An employee who believes that he or she was treated unfairly or is surprised by discipline or a termination is far more likely to file a lawsuit than an employee treated respectfully.

5. Consider a severance agreement. When ending the employment relationship, consider offering a severance package or compensation to which the employee is not otherwise entitled in exchange for a waiver and release of all claims. Providing an employee with two to four weeks of pay often is enough to convince the employee to waive any claims against the company. That is a small price to pay to avoid litigation in a risky situation.

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Amy Angel practices labor and employment law as an attorney at Barran Liebman LLP. In addition to regularly providing employer advice and solutions, she handles employment litigation in state and federal courts.

Published: Mon, Mar 1, 2010

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