Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

The EEOC just published its “Annual Report on the Federal Work Force Part I: EEO Complaints Processing for Fiscal Year 2011” It reports that for fiscal year 2011, federal employees and applicants filed 16,974 complaints of employment discrimination.

Statistics reported by the EEOC which compared FY 2010 to FY 2011 included:

-- the average time to process charges by federal agencies went down last year from 360.28 days to 346.38 days;

-- the average time to process charges by federal agencies “on the merits” went down from 480.99 days to 429.89 days;
 

--the number of charging parties who requested a hearing before an EEOC administrative judge went up to 47.8% from 43.8%, while the number of charging parties who filed an appeal with the EEOC’s OFO increased to 29.69% from 26.54%.
 

As to the types of charges, retaliation was the most frequently filed (which should come as no surprise to our readers), with non-sexual harassment the most frequently filed type of discrimination.
 

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Yesterday we spoke about the EEOC’s far-reaching investigative subpoena relating to a GINA charge, which appeared to delve into the employer’s systemic, company-wide practices and policies. The employer successfully blocked the subpoena, which a trade group’s “friend of the court” brief called “absurdly broad.”

Another such successful blocking of a far-reaching EEOC investigative subpoena was just brought to our attention. A federal appeals court recently was faced, in EEOC v. Burlington Northern Santa Fe Railroad BNSF, with an attempt by the EEOC to enforce a subpoena served in an investigation involving ADA charges brought by two individual employees. However, the EEOC’s subpoena delved into “pattern and practice discrimination” on a nationwide basis, for example, seeking “how [the employer] keeps track of every current and former employee, across the country, since 2006.”

The EEOC contended that “a single allegation of discrimination may warrant a pattern or practice investigation,” but the court was “not convinced.” The court, calling the request for information “incredibly broad,” held that “The EEOC is entitled only to evidence that is ‘relevant to the charge[s] under investigation’” and that “nationwide recordkeeping data is not ‘relevant to’ charges of individual disability discrimination filed by two men who applied for the same type of job in the same state.”

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We noted in our blog of May 16th that although fiscal year 2011 saw a record number of charges filed with the EEOC, there were no charges filed in either New York or New Jersey under the Genetic Information Nondiscrimination Act ("GINA").

We can now report of an interesting decision dealing with the EEOC’s subpoena power just released by a federal judge in Kentucky in a GINA case. The employee, who has an unidentified medical condition, filed a charge with the EEOC that the employer violated the ADA, and also checked off the box on the charge form indicating that the employer also violated GINA – although he did not say how.

The EEOC, while conducting its investigation into this charge, served a far-reaching subpoena upon the employer, seeking information which appeared to delve into systemic, company-wide practices and policies regarding ADA and GINA, such as, for example, all company-wide medical examinations and all doctors who worked for the employer.

The employer sought to block the subpoena, and an employer trade group filed a brief in support claiming that the EEOC was abusing its subpoena authority by serving an “absurdly broad subpoena” which amounted to a "fishing expedition."

The Court agreed: “While the Court recognizes that it is important for the EEOC to have the ability to investigate possible patterns of discriminatory action, this does not mean that every charge of discrimination justifies an investigation of the employer’s facility-wide employment practices. To conclude otherwise would eviscerate the relevance requirement and condone fishing expeditions, against which the Sixth Circuit has warned.”

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The EEOC reported some time ago that it had received a record number charges of discrimination for the fiscal year ending 2011 – almost 100,000 nationwide.  The EEOC has just released a report breaking down these charges by number and percentage state by state, and by nature of charge, giving us a good picture of which charges are increasing and which are decreasing, and providing bloggers and pundits with a good platform to speculate wildly but authoritatively about the reasons.   

Lets take two states and compare them – New York and New Jersey.   

New York’s total number of filings with the EEOC increased over the last three years from 3.8% of the total number of US filings to 4.4%, while New Jersey’s filings went down from 1.8% to 1.5%.   What is the reason for this difference in trending?  I have no idea.   Could be that the relevant state agency is New Jersey is more active or employee friendly and therefore receives a greater percentage of charges within the state, or it could be just a statistical anomaly. Or it could be that New Jersey employers are better trained and utilize best practices more often, which might be accounted for by the excellent legal services provided to these employers by my colleagues across the big river.  

Lets compare the types of charges filed.  Charges of sex discrimination made up 32.4% of the filings in New York, while only 28.1% in New Jersey.  However, charges of race discrimination made up only 29.3% of the filings in New York, while in New Jersey the number was 32.5%.      

Retaliation claims in New York made up 40.5% of the charges filed, while in New Jersey, they made up only 27.9%.  This disparity is pretty wide, and unexplainable to me at this point, (Note: the EEOC explained in its report that the numbers add up to more than 100% because many people file charges based upon multiple types of discrimination).

Oh, and GINA charges were zero in both states last year.      

The state by state report makes generally boring reading, but see for yourself.     

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In order to sue in federal court for employment discrimination under Title VII, an employee must first file a “charge” with the EEOC. That much is crystal clear. But what, in fact, constitutes a “charge,” since Title VII does not define that term with any precision?   What is minimally required for a filing to be deemed a “charge?”

In an opinion issued on June 28^th, Williams v. CSX Transportation Co., a federal appeals court provided a nice review of when a filing is deemed a “charge” under Title VII, and went through the elements set out by the EEOC and the Supreme Court.  In that case, the employee’s filing was initially dismissed because it purportedly contained insufficient allegations of a hostile work environment. The Court discussed the elements to be considered as to when a filing can be considered a “charge”:  

1.         Title VII requires only that it must be in writing under oath or affirmation, and it must contain such information and be in such form as the EEOC requires. 

2.         The EEOC requires that a charge should contain the names, addresses, and telephone numbers of the person making the charge and the charged entity; a statement of facts describing the alleged discriminatory act; the number of employees of the charged employer; and a statement indicating whether the charging party has initiated state proceedings. 

3.         Finally, the Supreme Court added a further element – that “taken as a whole” an “objective observer” would believe that the filing indicated that the charging party was actually requesting some action by the EEOC,  as opposed to, for example, merely being a request for information.  Federal Express Corp. v. Holowecki.

As to plaintiff Williams’ filing, the Court found that it did, in fact, contain information “sufficiently precise to identify the parties, and to describe generally the action or practices complained of,” and that “taken as a whole” it would suggest to an “objective observer” that Williams requested that the EEOC “activate its machinery and remedial processes.”

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