Thanks to Richard Cohen and his Employment Discrimination Report blog and the Washington Post for focusing attention on the recent report by the U.S. Equal Employment Opportunity Commission (EEOC) about the rapid increase in retaliation claims in the workplace. For years, employment discrimination complaints (i.e., claims by employees that they were discriminated against on the basis of one or more protected factors like race, gender, national origin, age, etc.) were at the top of the EEOC charts as far as number of claims filed. However, as my colleague Suzanne Boy noted back in January 2013, since 2010 there have been more retaliation claims filed with the EEOC than any type of discrimination claim.
The big increase involves claims filed by eligible employees (those who work for employers with at least 15 employees and most public employers) that they were demoted, fired, transferred, denied a raise or a promotion or similar complaints in retaliation for having complained about race, gender, age or other types of discrimination – sometimes even where the alleged discrimination involved someone else. According to the EEOC, a record 38,539 retaliation charges were filed in fiscal year 2013.
The statistics for Florida are similar. In 2013, a total of 3,095 retaliation claims were filed, representing about 41% of the complaints filed with Florida offices of the EEOC. This compares to 2,533 race discrimination complaints, representing 33% of all charges filed.
What accounts for the increase?
The Washington Post quotes Robert Weisberg, regional attorney for the EEOC’s Miami office. Weisberg attributes the increase to greater awareness by employees of their rights in the workplace: “I see often where there’s sexual harassment that in the past might have been tolerated, now is leading to internal complaints of discrimination, and that then sets the stage for retaliation of some sort.”
Only a small percentage of EEOC charges end up in court, but employers (and their insurance carriers) spend millions of dollars annually defending against these claims in the administrative process, whether or not a lawsuit actually gets filed.
Employment lawyers are hardly surprised by the EEOC statistics, as we have seen the increase in retaliation claims since the Supreme Court expanded the types of employer conduct that could be considered retaliation in the 2006 Burlington Northern & Santa Fe Railway Co. v. White decision, and in a 2011 decision, Thompson v. North American Stainless, where the majority held that a worker fired after his fiancé accused their mutual employer of gender discrimination was entitled to sue for retaliation. Given the state of the law, there is no reason to believe that retaliation claims will taper off for 2014 and beyond.
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