EEOC Report On Charge Statistics Provides Lessons For Employers

Posted on January 7, 2010 by Brian Hall

 Yesterday, the EEOC released its charge statistics report for its 2009 fiscal year, which ended on September 30, 2009. Not surprisingly, during an economically difficult period, the statistics show a near record number of charges filed -- 93,277 -- which is second only to the 2008 fiscal year when 95,402 charges were filed.

As usual, sex and race discrimination charges led the pack, but they also showed a slight decline from the previous fiscal year. Somewhat surprisingly, during a period that saw extensive reductions-in-force, age discrimination charges were significantly down. On the other hand, disability discrimination and retaliation charges showed the sharpest increase, both numerically and statistically.

The increase in disability discrimination charges likely can be tied directly to the enactment of the Americans with Disabilities Act Amendments Act (ADAAA) which makes it significantly easier for applicants and employees to establish that they have a protected disability. Employers can reduce the likelihood of being targeted for a disability discrimination charge by recognizing this new reality and engaging in good faith in the interactive process to determine whether a reasonable accommodation exists for applicants or employees with alleged disabilities. Frequently, the give and take of the interactive process if conducted in good faith will either result in finding an accommodation that both sides can live with or demonstrating to the applicant or employee's satisfaction that no reasonable accommodations actually exist. Remember, the ADA, even as amended by the ADAAA, still does not require the employer to provide applicants or employees with the accommodation they want -- only a reasonable one.

With respect to retaliation charges, as we have preached in previous posts both here and here, employers must be careful to treat employees who have filed discrimination charges or lawsuits as they would treat any other employee -- no better, no worse. In fact, the U.S. Supreme Court's decision in Crawford v. Metro. Gov’t of Nashville and Davidson County early in the 2009 term held that the retaliation protection provided by Title VII extend to employees who speak out about discrimination during the employer’s investigation into another employee’s internal complaint of discrimination. The Crawford decision, therefore, underscores employers' need to protect themselves from potential retaliation cases in this context as well by following up on any employees who claim "me too" in the course of internal discrimination investigations.

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Increased Scrutiny Following EEOC Charge May Pose Retaliation Risk

Posted on March 16, 2009 by Christy Pate

A termination within three months of an employee’s EEOC charge, combined with a claim that the employer increased its scrutiny of that employee after his charge was filed was enough to prevent summary judgment--even where the employer had refrained from terminating the employee at its first opportunity following his charge. Hamilton v. GE.

Jarrett Hamilton sued GE alleging that he was terminated in retaliation for filing an age-discrimination charge with the EEOC approximately three months earlier. He claimed that after he filed the charge, the company intensified its scrutiny of his work.  Of course, he filed the charge while on a 30-day suspension that had been agreed to after he had been terminated while under a Last Chance Agreement (LCA). The Company did not fire him when the first opportunity to do so arose after he filed the charge but later terminated him for what it said was unacceptable conduct, including refusing work directions from a supervisor and using “unacceptable foul and abusive language.”

Finding evidence to support Hamilton’s allegation that the level of scrutiny of his work increased greatly after he filed his charge, a two-judge majority of a Sixth Circuit panel was not persuaded by the lower court’s reasoning that “from the time of the LCA on, GE understandably supervised Hamilton’s work carefully.” Thus, in reversing summary judgment, the Sixth Circuit “h[e]ld that this temporal proximity of less than three months combined with the assertion that GE increased its scrutiny of Hamilton’s work only after the EEOC complaint was filed are sufficient to establish the causation element of a prima facie case of retaliatory termination.” The majority also rejected GE’s argument that its decision not to terminate Hamilton at the first opportunity following his charge established that it did not retaliate against him. Although there were no facts suggesting that this had occurred, the Court reasoned that employers could insulate themselves from such liability by first offering favorable treatment and then waiting for another chance to terminate the employee if it held that GE’s “favorable treatment” of Hamilton defeated his retaliation claim.

The dissent strenuously disagreed with the majority’s conclusions: “Surely an employer may more closely observe an employee who is returning from sanction, particularly one like Hamilton, who was working under a Last Chance Agreement and had been suspended and terminated in the past.” Unfortunately, as the dissent also observed, “[t]the majority’s holding merely encourages sanctioned employees like Hamilton to file discrimination charges, thereby obtaining ‘instant immunity’ from their employers’ supervision and punishment.” 

The Hamilton decision puts Ohio, Michigan, Kentucky and Tennessee employers in a precarious place once an employee has filed a discrimination charge. Indeed, the majority’s conclusion, as characterized by the dissent, that “sufficient facts suggest that GE waited for a ‘legal, legitimate reason [to fire him] to fortuitously materialize’ and then used that reason ‘to cover up [its] true, longstanding motivations’ of retaliation” demonstrates that GE did not help itself by taking what would appear to have been a prudent restrained course of action with respect to a troublesome employee. As the dissent complained, such conclusion ignores Hamilton’s significant disciplinary history, which preceded his discrimination charge, and essentially turns the statute’s anti-retaliation provision into “a blindfold or ‘gag-order’ on an employer’s ability to properly supervise its employees, particularly employees who have decisively demonstrated that they require closer supervision.” In light of the Hamilton decision, employers should be particularly careful in supervising and disciplining employees who have filed discrimination charges. Although the Hamilton decision may seem wrong-minded on its facts, it does tend to substantiate conventional wisdom when it comes to avoidance of retaliation suits: Treat employees who have filed discrimination charges as you would treat any other employee – no better and no worse since both can support a finding of retaliatory animus under Sixth Circuit law.  
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Title VII's Anti-Retaliation Provisions Apply to Statements Made During Internal Investigations

Posted on January 30, 2009 by Rob Stalter

Earlier this week, the U.S. Supreme Court released an opinion in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee. In this case, the employer, a school district in Tennessee, conducted an internal investigation into allegations of sexual harassment against its employee relations director, Mr. Hughes. Employee interviews were conducted in connection with the investigation. When the plaintiff, Ms. Crawford, was interviewed, she informed the school district that Mr. Hughes had sexually harassed her. Following the investigation, the school district took no action against Mr. Hughes but fired Ms. Crawford, alleging embezzlement.

Ms. Crawford filed suit against the school district, claiming that she was retaliated against in violation of Title VII of the Civil Rights Act of 1964. Title VII, which prohibits sexual discrimination and harassment, also makes it unlawful for “an employer to discriminate against any employee who . . . has opposed any practice made an unlawful employment practice by this subchapter.” The school district’s motion for summary judgment was granted by the district court and upheld by the Sixth Circuit Court of Appeals on the grounds that Ms. Crawford did not “oppose” the sexual harassment because she did not proactively complain about it or file a charge with the EEOC, but merely responded to questions asked during an internal company investigation.

Reversing the Sixth Circuit’s decision, the Supreme Court held that an employee who speaks out about discrimination during an internal company investigation is protected under the anti-retaliation provision of Title VII. The Court stated that if “an employee’s reporting discrimination in answer to an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses.” The Court did not address the employer’s defenses, including its allegation of embezzlement, because they were not addressed by the lower courts.

The Court’s opinion does not suggest whether an employee’s statements must be truthful in order to be protected under the opposition clause of Title VII’s anti-retaliation provision. However, in other cases interpreting the opposition clause, courts have generally held that plaintiffs can establish a prima facie case of retaliation if they show that they had a reasonable belief that the employer engaged in an unlawful employment practice.
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Two Supreme Court Decisions Expand Retaliation Claims

Posted on June 10, 2008 by Jaime Powell
On March 27, 2008, the Supreme Court released two opinions addressing discriminatory retaliation in the workplace. In the pair of opinions, the Court broadened the scope of potential claims for retaliatory conduct by holding that: (1) employees may bring a private action for discriminatory retaliation under §1981; and (2) the Age Discrimination in Employment Act (ADEA) prohibits retaliation against federal employees who complain of age discrimination.

In CBOCS West, Inc. v. Humphries, the Supreme Court held 7-2 that under 42 U.S.C. §1981, retaliation itself is a form of prohibited discrimination when contractual rights are at stake, even though §1981 does not include the word “retaliation.” Although this particular issue had been addressed by several appellate courts, the Supreme Court had never addressed the question squarely.

As background, §1981 gives “all persons…the same right…to make and enforce contracts…as is enjoyed by white citizens” and applies in the employment context because the employment relationship is often considered contractual in nature. The plaintiff in this case, Hendrick Humphries, claimed that he was fired because he complained to managers that a co-employee was dismissed for race-based reasons. In its appeal brief, the defendant framed the question before the Court simply as: “Is a race retaliation claim cognizable under 42 U.S.C Sec. 1981?” The answer to that question, according to the Supreme Court, is yes. As a result of this decision, employers should be aware that employees now have one more potential claim in their arsenal when it comes to discriminatory or retaliatory treatment. It’s also important to note that retaliation claims under §1981 likely will not be subject to the filing deadlines and limits on damages imposed by Title VII.;

Likewise, in Gomez-Perez v. Potter, the Court held 6-3 that the ADEA prohibits retaliation against a federal employee who complains of age discrimination. The case involved a 45-year-old postal worker who claimed that she was subjected to various forms of retaliation, including a drastic reduction in hours, after she filed an administrative ADEA complaint. Section 633a(a) of the ADEA requires that “all personnel actions affecting [federal] employees…at least 40 years of age…be made free from any discrimination based on age.”

Relying on a rationale similar to that in CBOCS West, the Court settled a split among the circuits by holding that, despite no mention of “retaliation” in the statute’s prohibition of discrimination against federal employees based on age, such retaliation is prohibited. Notably, the Court acknowledged, but ultimately was not persuaded by, the “negative implication” argument – i.e., that §623(d) of the ADEA contains a specific prohibition on retaliation against ADEA complainants in the private sector but §633(a) contains no such provision for federal employees. In response to this argument, the Court noted that the two provisions were neither considered nor enacted simultaneously, thereby greatly diminishing the impact of that argument.

As in CBOCS West, the Court stressed that private rights of action for discrimination encompass rights of action for retaliation as well. Although this decision obviously has the most impact on claims by federal employees, it is further evidence of the Court’s willingness to expand the rights and potential claims of employees in the area of discrimination. 
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