Avoiding the EEOC

If statistics are any indicator, it is getting harder for Tennessee employers to avoid the EEOC. Of course, statistics are only as good as the underlying data but here, I want to present the underlying data and let you draw your own conclusions.

I'll start by recounting the fact that some of my clients (and I hear of other employers) think, "it won't happen to me" or "everyone in town" fails to comply with this rule, why should I? Here is why.

The EEOC has released its "Performance and Accountability Report" for FY 2009. While the report lets the EEOC say how well it is doing its job, it also includes basic information on the charges that are filed and the lawsuits the EEOC decides to file. (The EEOC divides charges between the federal and private sector so I will only address private sector data.)

I like to look at trends and one significant trend for employer is that in FY 2008, the EEOC received 95,402 private sector charges of discrimination, which, the EEOC says, is a 15.2% increase in all charges (including retaliation charges) filed in FY 2007. This means 12,000 more charges were filed in FY 2008 than in 2007 and that the EEOC is beginning FY 2009 with an "inventory" of nearly 75,000 charges. That means employers (and employees) will have to wait longer for the EEOC to investigate and resolve charges of discrimination unless, as the EEOC says it is trying to do, the EEOC makes "major improvements in case processing."

The EEOC also likes to mention how it conducts litigation. In FY 2008, the EEOC filed filed 290 lawsuits alleging some kind of discrimination or retaliation (as opposed to actions seeking enforcement of an EEOC subpoena). Now this is significant for Tennessee employers for several reasons. First, I can recall at least three lawsuits that the EEOC has brought against East Tennessee employers in the last one or two years. Second, the EEOC's success rate in litigation is statistically better (50 percent v. 38 percent) than that of private attorneys. (That doesn't reflect on the quality of representation so much as the disparity in litigation resources and the ability to select which lawsuits to bring.)

One other point the EEOC made was that its lawsuit statistics show it is under-filing age and disability discrimination claims (exactly how the EEOC measures this need not be explained here, it is enough to say this is what the EEOC believes). So, while employers should always be careful in making employment decisions, employers should also be aware that the EEOC wants to normalize its statistics on the age and disability lawsuits it brings.

It is hardly surprising that with the economy tanking, charge filings are up but to be up 15 percent in just one year is pretty dramatic. To put it in perspective, private sector charge filings were up 9 percent in FY 2007 (82,792 charges were filed), but up only a negligible amount (less than 500) in FY 2006 when 75,768 private sector charges of discrimination were filed as compared to the 75,428 filed in FY 2005, 79,432 in FY 2004 and 81,293 filed in FY 2003. And if you average all the prior fiscal years (where there were on average 78,943 charges filed) that means charge filings in FY 2008 are up 17.25 percent.

So, if this means anything, it is a reminder that difficult economic times means an increase in employment related litigation. Even more so that usual, a wise employer should carefully plan and document all of its employment decisions, conduct fair investigations before imposing discipline for misconduct and consult with competent counsel whenever there is any doubt about the approach to be taken in any given situation.