Best practices for preventing harassment and discrimination charges
Local attorneys expect Michigan may see a decrease in claims.
According to data collected by the U.S. Equal Employment Opportunity Commission and released earlier this year, Michigan saw a slight increase in harassment and discrimination charges during fiscal year 2013.
In 2013, 2,604 harassment and discrimination charges were filed in Michigan, which is an increase from 2012’s 2,587 charges.
Michigan makes up 2.8 percent of the country’s total harassment and discrimination claims, according to the EEOC data.
Claims of racial discrimination and discrimination based on disability received the highest number of complaints in 2013, both reaching 855 charges, while sex discrimination charges in the state totaled 722.
In 2012, racial discrimination charges in Michigan totaled 860, disability charges totaled 814 and sex discrimination charges totaled 686.
Across the country, the EEOC reported that 93,727 charges were received in fiscal year 2013, which is a 5.7 percent decrease from the 99,412 charges received in 2012.
The EEOC said retaliation under all statutes was the most frequently cited basis for charges of discrimination, increasing in both actual numbers, 38,539, and as a percentage of all charges, 41.1 percent, from the previous year.
This was followed by race discrimination, 33,068, or 35.3 percent; sex discrimination, including sexual harassment and pregnancy discrimination, 27,687, or 29.5 percent; and discrimination based on disability, 25,957, or 27.7 percent.
“Both race and disability discrimination increased in percentage of all charges while decreasing in raw numbers from the previous year, while charges of sex discrimination decreased by over 2,600 charges,” according to the EEOC.
The EEOC touted its response to harassment and discrimination claims following the release of this data, noting this is the fourth year in a row it resolved more charges of discrimination than it took in.
“The Commission resolved 209 merits lawsuits, resulting in $39 million in monetary benefits to victims of unlawful discrimination, plus wide-ranging injunctive relief, tailored to the particular issue in the lawsuits,” said the EEOC.
Despite the slight increase in Michigan charges this year, Zoe Martinez, an attorney with Rhoades McKee, said she expects Michigan’s numbers to begin to drop.
“In my experience, Michigan employers are, on the whole, very committed to maintaining a safe and collaborative work environment for their employees,” Martinez said. “As more and more employers leverage technology to automate documentation in personnel files and communicate with employees, I wouldn’t be surprised if Michigan’s numbers decrease.”
Gary Chamberlin, an attorney with Miller Johnson, noted rebounding employment numbers might also have a positive impact on EEOC filings. He said when employees have more job prospects they are less likely to file a discrimination claim and more likely to simply move on to another job.
Still, companies should be proactive in adopting best practices that reduce their exposure to discrimination or harassment claims.
Mary Tabin, a Rhoades McKee attorney, said companies should start by developing an ironclad non-discrimination and anti-harassment policy, complete with a clear complaint procedure that complies with Title VII.
“The second and equally important step for employers to take is to invest time in training management on how to properly carry out the policy objectives,” she said.
Harassment training should not just be for managers and supervisors, however.
“Annual harassment training for the general workforce is a great way to remind all employees of the employer’s commitment to maintaining a harassment-free and discrimination-free workplace,” Martinez said.
Martinez said she couldn’t overemphasize the importance of workforce training.
“In the past few years, the EEOC has been a lot more aggressive in investigating Title VII discrimination and harassment claims, especially disability discrimination issues,” she said.
“The EEOC often wants to see more than just a policy printed in a handbook. The EEOC generally wants to know whether the employer engages in yearly training to educate their managers and employees, and what other steps the employer engages in to safeguard against harassment and discrimination in the workplace.”
Documentation also is vital for employers, particularly because employees have become savvier when it comes to retaliation claims.
Chamberlin suggested that, even though Michigan is an “at will” employment state, employers would be better off treating employees like “just cause” employees.
“When possible, treat all discipline and discharge situations as though the individual was a ‘just cause,’” he said. “This means thoroughly investigating and documenting performance issues and consequences as if the employer were going to an arbitration hearing.
“This will help provide written evidence and support for the employer to defend itself in the event of a discrimination charge or lawsuit afterwards. ‘He said/she said’ verbal explanations of discipline and discharge reasons are usually unpersuasive to EEOC investigators.”
Tabin added a well-crafted termination letter that highlights the business reasons for the employee termination also would help bolster an employer’s defense.
Finally, managers should know when to let someone else step in.
“When an employer has doubts about the proper course of action to take with an employee, it is always best to talk with employment counsel before taking any action,” Martinez said.