EEOC points to increased complaints against employers

January 28, 2011
| By Pete Daly |
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Both Ellen Levey and Jeff Fraser would agree: The number of complaints filed by American employees with the U.S. Equal Employment Opportunity Commission increased dramatically from 2008 through 2010.

But what is driving the increase isn’t totally clear. Levey thinks it may be due to people in the workplace behaving badly because they’re worried about their jobs. Fraser thinks it could be a couple of things, one of them being the possibility that the Obama administration EEOC is filing more claims, “trying to send a message to employers.”

Levey, director of organizational development at The Employers’ Association, issued a news release in late January noting that TEA has seen an upswing since the fall of 2009 in requests by employers for training to prevent harassment and discrimination issues at their companies.

TEA, 5570 Executive Parkway SE, Grand Rapids, is a not-for-profit membership organization providing West Michigan businesses with human resource-related information and solutions. About 600 companies are members.

Levey said TEA holds up to 75 training or informational sessions a year to help both management and employees avoid situations that might end up involving the EEOC or other government agency, related to treatment of employees in the workplace.

In FY2010, the EEOC said 99,922 charges were filed nationwide by employees or former employees. The year before that, the number was 93,277, and in FY2008, it was 95,402. In FY2007 it was less than 83,000, and it hadn’t been higher than that since 2002 (84,442.)

“Usually when there are downturns in the economy, people get very frustrated in the workplace and tend to take things out on each other. They don’t play as nicely together as they normally do; they’re worried about their job,” said Levey.

These situations may include employees harassing each other and also allegations that the termination of a particular employee was racially motivated.

“Retaliation is one of the largest numbers here, if not the largest,” she said. The statistics from EEOC show that 36,258 charges claimed retaliation by management in cases related to termination or disciplinary action. Charges based on racial prejudice “is right behind it,” she said. That number was 35,890 in 2010.

Fraser, a partner at the Miller Johnson law firm in Grand Rapids with 25 years of experience defending employers against employee complaints, said the level of complaints taken by the EEOC is “fairly cyclical.” When the economy is bad and it is difficult to find jobs, some employees who have been fired or disciplined will file suit to “leverage more resources from an employer” than what they might receive on unemployment.

Fraser counsels employers on the risks of “discharge events” to help them minimize those risks.

There are actually multiple federal and state agencies that help employees if they believe they have been discriminated against or have suffered retaliation.

EEOC protects employees against discrimination based on age, sex, disability, place of origin, or religious beliefs. The Michigan Department of Civil Rights is a corollary agency that deals with the same issues, according to Fraser, “but under Michigan law, there are additional protections for height, weight and marital status.”

If the issue can be handled by either the EEOC or the Michigan Department of Civil Rights, the two agencies have a “workshare arrangement where they decide upfront who is going to handle what types of claims. They coordinate,” said Fraser.

Still other government watchdogs include the U.S. Department of Labor and the National Labor Relations Board.

The Department of Labor deals with overtime pay and minimum wage issues, while the NLRB is a separate and independent federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative. The NLRB also acts to prevent and remedy unfair labor practices committed by private sector employers and unions, according to its government website.

When people think of the National Labor Relations Board, said Fraser, they normally think of it in terms of union issues, but it also investigates issues that relate to what is called “protected concerted activity,” which is “a big deal now with social media,” he said.

For example, an employee might decide to put a statement on his Facebook account for the benefit of his coworkers, objecting to something the company is doing or complaining about low wages, etc. Then the employer finds out and terminates the employee. That can be a violation of law, in the purview of the NLRB, said Fraser.

Fraser said in the last two or three years, the number of claims filed with the EEOC “have increased, in part, because employees can’t go land that next job, if terminated. And in part — this is my political view — the administration changed in Washington, D.C., and there has been a push to make sure that employees, through the government agencies, understand they have rights, as compared to the employers.”

The administration’s agencies “have become much more active in pursuing claims and suing employers, and publishing the fact that they want employees to know they are protected,” he said.

Returning to work after a leave of absence for medical reasons has been one of those issues, said Fraser.

In September 2009, the EEOC announced that Sears, Roebuck and Co. had agreed to pay $6.2 million to resolve a class action suit under the Americans With Disabilities Act. The announcement noted that it was the largest ADA settlement in a single lawsuit in EEOC history. The EEOC's suit alleged that Sears maintained “an inflexible workers' compensation leave exhaustion policy,” and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA.

Lexology, a website for corporate lawyers maintained by Globe Business Publishing Ltd., noted Jan. 21 that earlier this month the EEOC had announced a $3.2 million settlement against Jewel-Osco, also based on the ADA. The website stated that company policies requiring employees to return to work without any restrictions are considered red flags by the EEOC, which cited the “reasonable accommodations” clause in the ADA.

“Those types of claims are rising, and to me, it’s an example of a federal agency like the EEOC making big news, getting in the paper, letting all the employees know that if they think they’re being treated poorly by their employer that they ought to come see the EEOC so that the EEOC can make the employer abide by federal law — or the stretch of federal law that the EEOC is trying to get,” said Fraser.

One option for a terminated employee is to find a private attorney who will represent him or her in a lawsuit, “and in Grand Rapids, those folks tend to be fairly well-known,” said Fraser.

The lawyer begins with a letter to the employer to begin a dialogue on the matter. “At least on the west side of state, that’s typically the way we operate,” he said.

If nothing is resolved by a dialogue, the attorney may file suit or the employee may go to the EEOC to file a charge. In either case, the employer has to respond very carefully.

“The frustrating part for employers is that it’s very expensive to do that. It takes time and energy and money, and lots of times, they’ve done nothing wrong. It’s simply a leverage technique by the former employee to try to get the employer to pay them some money,” said Fraser.

Most cases, however, do not get to the trial stage, according to Fraser.

“I think the general statistic is that if a case is actually filed (by a federal or state agency or by a private attorney), approximately 95 percent of those cases get resolved prior to trial.”

That could mean there was a money settlement, or in some cases, a letter of reference from the former employer.

Fraser said sometimes a judge will dismiss a case after all depositions have been taken and reviewed, determining that there was no violation of law. “Only about 5 percent actually go to a jury,” he said.

Levey said one type of legal action pitting employees against employers has to do with employees dating other employees, or supervisors/managers dating subordinates. “That’s a big one,” she said.

Some companies now require employees “to sign what they call a ‘love contract,’” she said. “It says if I’m dating or married to somebody in the organization and the relationship dissolves, I will not hold the company liable.”

“We’re such a litigious society,” said Levey. “When somebody goes through a nasty divorce, they want to sue everybody, and they want to sue the company where they met that scoundrel.”

The training TEA offers makes a point of employees immediately doing something about it when something inappropriate happens at work. The first step is to let the offensive party know in no uncertain terms that his or her action or comment is inappropriate.

The training also covers basic things people should not do at work, like make jokes about race, religion or being overweight.

“We all like jokes, but we really have to be careful about that,” she said.

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