EEOC Releases 2018 Enforcement and Litigation Data…and it’s good news (for employment lawyers)

The EEOC just released its 2018 Enforcement and Litigation data and, as we all expected, there was a sharp increase in sexual harassment charges (up 13.6% over 2017). The #MeToo movement is unsurprisingly credited with the upsurge. The EEOC obtained $56.6 Million in monetary benefits for victims of sexual harassment in 2018. That number also looks like this: $56,000,000.00 (That’s a lot of zeroes, in case you weren’t already agape).

 

In terms of the total number of charges filed, the usual suspect, retaliation, came in first place with a whopping 39,469 charges. In case you didn’t know, retaliation is not only the most common charge, but it is usually incredibly difficult to defend. To be blunt, this is because the retaliation probably did happen (yep, I said it). Retaliation is the product of unchecked human nature (“She reported me to HR, so I’m going to get her back by this not-so-clever retribution!”) combined with oblivious leadership who fail to focus on it after an employee engages in protected activity.

Proactive Tip: It is important to train managers, not just on discrimination and harassment, but on retaliation as well, then to ensure that they actually understand the practical application of the training.

Next up was sex discrimination (24,655 charges), disability discrimination (24,605), race discrimination (24,600), and age discrimination (16,911). Finally, national origin came in at 7,106, color at 3,166, religion with 2,859, equal pay at 1,066, and genetic information with 220. That’s a whole lot of charges folks! When you consider the average legal fees and costs incurred by an employer to investigate and defend just one charge (anywhere from $5,000 to over $100,000), you would think I would just shut my mouth and collect my fee. Why try to convince employers to be proactive when the majority seem fairly content to wait until the sky is falling before getting competent HR support and employment law counsel?

Human Resources Experience, LLC was born out of two important points of view that coexist in my brain and work together to keep me awake at night: (1) I care about people and we desperately need to end discrimination and harassment in the workplace; and (2) All of these employment lawsuits are terrible for businesses and damaging to our economy. That’s right, you can be warm and fuzzy while also protecting the bottom line. How, you ask? By being proactive.

 

Here’s how a reactive situation looks:

 

You receive a charge of discrimination filed by Rita Receptionist alleging a hostile work environment. You have no idea what she is talking about. You hire an attorney (or your employment practices insurance company refers you to an attorney). You pay the attorney to investigate the charge and respond. The attorney’s fees for this process conservatively range from $5000-$15,000 depending on the number of witnesses, travel time, etc. At some point, the attorney may tell you that your policies and procedures are out of date or your employment practices are illegal. In the meantime, Rita updates her charge to include retaliation (because she still works for you during this whole process). Then, it becomes a game of negotiating the best possible settlement, which you hope includes a resignation from Rita.

 

The numbers that your attorney suggests leave you curled up the fetal position under your desk with a bottle of Evan Williams (how can a receptionist making $13/hour be demanding $100K?!), plus your attorney has no real incentive to calm tensions because anger keeps the matter alive and drives up fees. If you are lucky enough to reach a reasonable settlement after being trapped in this process for a year, you are now totally freaked out that it will happen again. Now you’re ready to hire someone to audit your policies and procedures as well as other employment practices, and train your people on harassment, discrimination, and retaliation, then you pray that you are prepared next time.

 

Now check out how the same situation looks when handled proactively:

 

You realize that the regulatory landscape for employers has gotten a little hard to follow, so you engage a proactive legal practice (insert shameless plug for Human Resources Experience). You pay a reasonable monthly fee to get updated policies and procedures, an audit of your current employment practices, background and reference checks for your new hires, effective harassment, discrimination, and retaliation training for your managers, HR support with employee relations matters, employee engagement interviews, and thorough internal investigations of employee reports. Your proactive legal team meets with Rita Receptionist for an employee engagement interview, learns about her concerns, and immediately acts by initiating an internal investigation and putting relevant individuals on notice of their duty not to retaliate (providing training reminders on the practical application of this warning). The investigation reveals that Rita is being regularly berated by Vinnie Vendor (who doesn’t even work for you!). You receive a concise recommendation to move to a new vendor. You have removed a toxic component from your work environment and Rita feels heard. No EEOC charge is filed, the sun is out, the birds are singing, and you are fully upright, smiling, and enjoying a margarita on a patio somewhere.

 

To be clear, being proactive does not mean that you pay money and I magically shield you from employment litigation. It certainly doesn’t mean that there will never be litigation because some people are just litigious. What it does mean is that we will work together to correct problems and avoid the majority of these legal issues. Also, when the inevitable legal issues arise, we will be prepared with strong evidence in support of the employer.

Being proactive can be challenging because it requires you to be: (1) ready to allow a complete audit of your employment practices, including the ugly parts; and (2) ready to set aside your ego and work together to make them prettier. It truly is a relatively painless process if you promise not to attach your self-worth to “the way we’ve always done it.” As you can see in the scenarios above, the end result is undeniably worth it.

So, given the new EEOC statistics, why is the reactive scenario above a risk you are willing to take?