EEOC: Retaliation Makes Up Almost Half of Discrimination Charges

Agency offers guidelines for how employers can respond to a charge of discrimination

Retaliation, race and disability were the most common workplace discrimination chargesfiled with the Equal Employment Opportunity Commission (EEOC) in fiscal year (FY) 2017.

Retaliation, which topped the list, occurs when employers treat some people less favorably than others. That includes job applicants, employees, former employees or those closely associated with those people for:

• Reporting discrimination.
• Participating in a discrimination investigation or lawsuit.
• Opposing discrimination, such as threatening to file a discrimination complaint.

The 41,097 retaliation charges the EEOC received made up nearly 49 percent of the complaints filed with the agency, followed by:

• Race: 28,528 charges (33.9 percent).
• Disability: 26,838 charges (31.9 percent).
• Sex: 25,605 charges (30.4 percent).
• Age: 18,376 charges (21.8 percent).
• National origin: 8,299 charges (9.8 percent).
• Religion: 3,436 charges (4.1 percent).
• Color: 3,240 charges (3.8 percent).
• Equal Pay Act: 996 charges (1.2 percent).
• Genetic information: 206 charges (.2 percent).

The above adds up to more than 100 percent because some charges involved multiple types of discrimination.

The 84,254 charges of workplace discrimination resulted in the EEOC filing 184 lawsuits—124 individual suits, 30 suits involving multiple victims or employer policies that were allegedly discriminatory, and 30 suits involving cases of systemic discrimination. The agency reportedly secured $398 million for victims of discrimination in the private sector and state and local government workplaces.

The EEOC also received 6,696 sexual harassment charges in FY 2017 and obtained $46 million in monetary benefits for victims. There are two types of sexual harassment claims—quid pro quo and creating a hostile work environment—that can occur in a variety of circumstances. We tell our clients that preventing sexual harassment starts with the employer’s culture of respect.

How to Respond If Your Company Faces a Discrimination Charge 

The EEOC offers the following tips on what a small business should do if it receives notice from the federal agency that a charge of discrimination has been filed against it:

Review the charge notice carefully. The EEOC “Notice of a Charge of Discrimination” informs the employer that a complaint has been filed against it. It does not mean that the company violated the laws that the EEOC enforces. A charge is a complaint of discrimination, not a determination that discrimination has occurred.

Follow the directions on the EEOC charge notice. The notice may ask the employer to provide a response to the charge (a “position statement”). This is an opportunity to explain why the claims in the charge are incorrect or not illegal.

The employer is not required to hire a lawyer to help it draft a position statement or respond to a charge of discrimination. However, at any point in the EEOC charge process, the employer may do so if it chooses.

Consider free EEOC mediation to resolve the charge quickly and confidentially.

Respond to requests for additional information from the EEOC, even if the employer believes that the charge is frivolous. The EEOC investigator may request documents, interviews, a conference or an onsite inspection. The information the employer provides may cause the agency to dismiss the charge.

If the employer needs additional time to respond, or if there are questions or concerns about the type or amount of information that the EEOC has requested, the employer should contact the investigator assigned to the charge. The EEOC may grant an extension or modify the information request, depending on the circumstances.

Protect employees from retaliation. Ensure that the employee is not punished for filing the charge and that employees are not punished for participating in an investigation. Retaliation is illegal, even if the EEOC concludes that the charge of discrimination does not have merit.

Retain relevant documents. If the employer is not sure whether a document is relevant, ask the investigator.

Contact the EEOC investigator assigned to your charge if there are questions.  

Joe Boone, MBA, SPHR, is the founder and president of Strategic HR Solutions, LLC, a human resources consulting firm that provides small businesses with a wide range of virtual and onsite HR solutions to meet their immediate and long-term needs. From ensuring legal compliance to writing customized employee handbooks to conducting sexual harassment training, businesses depend on our expertise and cost-effective human resources services to help them thrive.

Visit our website at www.strategic-hrsolutions.com.