Publications

THE EEOC'S NEW FOCUS ON DISCRIMINATION CLAIMS ... WHAT IT MEANS, AND WHAT YOU NEED TO DO ABOUT IT

With all the focus on the Sotomayor appointment to the Supreme Court, something much more ominous for the business community has gotten lost in the political morass: the EEOC is launching a scary assault on workplace discrimination, and it's amassing the kind of war chest required to overwhelm its targets.

First, a word about Judge Sotomayor. Forget the hype. As a federal appeals court judge, she ruled in favor of employers 62% of the time, and against them only 25% of the time (ending up somewhere in the middle in the remaining cases she decided). Not bad when compared to a recent sample concluding that federal appeals court judges across the country rule for employers only 41% of the time. She can be somewhat plaintiff-oriented in sexual harassment and ADA cases, but notwithstanding her ill-considered "wise Latina woman" comments, her rulings have been very employer-friendly in an array of discrimination and other employment practices cases.

The upshot: stop worrying about Judge Sotomayor, and start worrying about the EEOC.

In May 2009, the EEOC filed its "Fiscal Year 2010 Congressional Budget Justification" - the EEOC is getting a significant increase in funding, and felt the need to explain what it proposed to do with the money. The short version: the EEOC will use its increased budget to file and either settle or litigate more discrimination cases against employers than it ever did before. In the EEOC's words, it plans on "continuing a strategy to focus on race discrimination" and it "plans to increase capacity to effectively investigate, conciliate, and litigate a growing number of charges."

How many more charges? The EEOC handled 56,984 charges in 2008. It says it plans to ramp up, year by year, to 138,470 charges by 2013 ... nearly a 250% increase in five years.

The EEOC gets much of its business from disgruntled employees, and the EEOC makes it easy for them to file a charge against their employers. From the EEOC's Philadelphia District Office website:

The Philadelphia office's hours of operation are from 8:30 a.m. to 5:00 p.m. Monday through Friday. Walk-ins are taken 8:30 to 3:30 each day. If you have an employment discrimination question or if you wish to file a charge, please call the EEOC National Contact Center toll-free at 1-800-669-4000 or 1-800-669-6820 (TTY). You may also write the office at 801 Market Street, Suite 1300 Philadelphia, PA 19107-3127. ... You may also use our online assessment and complete a questionnaire to be sent or taken to our office.

In view of the EEOC's goals, you can expect increased outreach efforts, and you can expect the EEOC to prosecute an increasing percentage of the claims it receives.

So what do you do now? Avoiding unlawful workplace discrimination is the obvious key, but that's much easier said than done: this area of employment law is rife with mystery, and discrimination claims arise from wholly unintended and unforeseen sources; employers who will, literally, swear that they never intended to unlawfully discriminate are routinely hammered with huge discrimination verdicts.

Worse, doing the right thing is not enough. Unwarranted and baseless discrimination claims are brought all the time, and as anyone who has been through the EEOC wringer can attest, there is an unfortunate difference between doing nothing wrong, and being able to prove to the EEOC's satisfaction that you did nothing wrong. Documentation is everything.

We, often try to implement a six-pronged approach to help our clients elude the discrimination trap. There are, of course, many individualized variations on this theme, but here's the time-tested template:

1. The legal audit. You can't solve a problem unless you know it's there. We review all aspects of an employer's policies and practices, both as they exist in theory and as they exist in practice.

2. Fix what needs immediate fixing. We look for the accidents that are just about to happen, and stabilize things before moving on.

3. Create preventive forms and procedures. The task is to eliminate as much management ad-libbing as feasible in crucial areas such as recruiting, interviewing, hiring, compensation, discipline, promotion, termination and documentation.

4. Train executives, managers and supervisors - the right way. Having the right kind of procedures in place doesn't do much good if the key players don't know how to utilize them. In addition, executives, managers, and supervisors need to know how to spot and react to the discrimination red flags they inevitably confront. And they have to learn how to properly document employee conduct and management responses. Mountains can be turned into molehills if things are handled the right way.

5. Establish an attorney hotline relationship. You need an attorney "hotline" relationship that allows you to obtain quick advice to the inevitable "what do I do now" questions that arise, before you make a mistake.

6. Create a culture of compliance. It all starts from the top down. Business leaders have to learn how to model the kind of behaviors that change employment practices cultures.

The law is shifting to a decidedly pro-employee agenda, replete with hidden traps and pitfalls. Let us know if we can help.

©2009 Powell, Trachtman, Logan, Carrle & Lombardo, P.C. The foregoing is intended for general information purposes only and does not constitute legal advice. All business and legal decisions should be made in conjunction with competent legal advice as applied to specific situations. Portions of this article may be quoted for non-commercial purposes with proper attribution.