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Employment Discrimination Report Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

Everything is Freezing, Except Charges at the EEOC

Posted in General Employment Discrimination, Retaliation, U.S. Equal Employment Opportunity Commission (EEOC)

FrigidMany of us are currently buckling in for a frigid holiday weekend (except for the lucky folks down in the south and southwest).  However, recent data issued by the U.S. Equal Employment Opportunity Commission (EEOC) shows that charges of discrimination continue to remain white hot (despite the temperature).  For the 2015 fiscal year, the EEOC clocked an uptick of total charges to 89,385 (up from 88,778 in 2014).  While this aggregate number is still slightly lower than the record-breaking annual charge rates just a few years back, charge rates remain historically high from a decade ago.  State-by-state charge rates are also available here for anyone interested.  The most common discrimination claim nationally (other than retaliation) is race (34.7% of all charges) followed by disability (30.2%), sex (29.5%), and age (22.5%).  (Note that charging parties commonly assert claims under multiple protected categories.)

Notably, retaliation claims remain the largest category altogether, accounting for a whopping 44.5% of all charges asserted.  This is unsurprising since retaliation claims, as a percentage of total EEOC charges, have grown every year since 2002.  This trend is also extremely likely to continue.  As employees become more and more aware of their available claims, retaliation is the easiest allegation to assert, and even control.  As U.S. Supreme Court Justice Anthony Kennedy pointed out in his seminal retaliation opinion, Texas Southwestern Medical Ctr. v. Nassar, 133 S. Ct. 2517 (U.S. 2013), “an employee who knows that he or she is about to be fired . . . might be tempted to make an unfounded charge . . . ; then, when the unrelated employment action comes, the employee could allege that it is retaliation.”  Id. at 2532.

This gamesmanship, coupled with the difficulty for an employer to prove that a complaint of discrimination and adverse action are unrelated, makes retaliation claims incredibly easy for an employee to maintain.  Although the EEOC recognizes this trend, and that its guidance on the subject has not been updated since 1998 (despite significant intervening U.S. Supreme Court decisions), its recent proposed retaliation guidance, if implemented, will be even more employee friendly than ever and continue to encourage yet more retaliation claims.  Employers must continue to brace themselves for this trend and ensure that all company policies and training procedures adequately address the EEOC’s most active issues.