Thinking of letting an employee or two go? Watch your step.
The U.S. Equal Employment Opportunity Commission recovered a record high of $294 million in back wages on behalf of employee claimants in fiscal year 2009, thanks partly to the recession. It also collected another $82 million from complaints that actually made it to court (as opposed to the EEOC's process).
"When times get tough, the first to go are the older workers," Diane King, a civil rights attorney for 23 years, told the Denver Post. "Also on the hit list for some employers are minorities and pregnant women."
King says she's seen this pattern during previous economic slumps – and that her firm's caseload of age and minority discrimination complaints has leaped 20 percent since the current recession hit.
According to the EEOC's most recent annual report, the number of pregnancy-discrimination claims brought to the agency has jumped more than 30 percent since 2005, outpacing the almost 24 percent in all job bias claims brought. (The agency doesn't break down statistics into types of discrimination, such as firing or involuntary reassignment.)
Workplace discrimination experts attribute the rise in pregnancy claims to women's greater awareness of their rights – plus a soured economy that's made employers quicker to fire and employees more willing to sue.
"When the economy is bad, more people are out of work and if people perceive their termination from employment as unfair, it's only a small leap to unlawful," said Dean Harris, an attorney for the nonprofit Mountain States Employers Council.
The EEOC reported 93,277 complaints filed in 2009. One notable statistic: Allegations of disability discrimination climbed 10.2 percent from 2008 – and these claims made up nearly a quarter of the discrimination claims filed. The number of claims is expected to escalate thanks to last year's broadening of the definition of disability as it applies to the Americans With Disabilities Act. (For a primer, click here.)
How can you avoid being the target of a complaint?
First, train both employees and managers about their obligations under discrimination and harassment laws. For employees, focus should be on acceptable workplace behavior and how to complain. Supervisors should get a good grounding in the law and learn how to handle complaints appropriately and according to a procedure.
Think you haven't got time (or money) for training? "You risk becoming an EEOC claim statistic with a weak or nonexistent defense," blogged lawyer Robin Thomas of Personnel Policy Service, a human resources policy and compliance company. (Need a complaint form or other tools? Click here.)
Second, review every firing decision to make sure you're following procedure (and if you don't have one, consider writing one) – and that you're treating employees equally. In the case of pregnancy, it's not up to you to decide, for example, what's too stressful or too much for a pregnant woman.
"Employers have to be mindful that they're not treating their pregnant employee any different than their male employee with a back injury," said Marc R. Engel, a Bethesda lawyer who advises companies on workplace discrimination. (If you're not sure, it may be time to call your lawyer.)
Third, document everything – you don't want your defense to fall down because you don't have a record.
Fourth, don't retaliate. Retaliation claims – basically, that an employer took some negative action against an employee when the employee, say, complained of discrimination – accounted for 36 percent of all EEOC claims in 2009, by far the biggest chunk. Plus courts often rule in favor of employees in the retaliation portion of their lawsuits, said Thomas – even if the underlying discrimination claim is dismissed.