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See You in Court?
Last year saw the second-highest number of workplace-discrimination charges ever filed with the EEOC. As if that weren't enough, a report finds that talented and experienced class-action litigation attorneys are increasingly focusing on employers.
The U.S. Equal Employment Opportunity Commission announced recently that 93,277 workplace discrimination charges were filed with the federal agency nationwide during fiscal year 2009, the second-highest number ever, and monetary relief obtained for victims totaled over $376 million. "Equal employment opportunity remains elusive for far too many workers and the Commission will continue to fight for their rights," said acting EEOC chairman Stuart J. Ishimaru in commenting on the report. "Employers must step up their efforts to foster discrimination-free and inclusive workplaces, or risk enforcement and litigation by the EEOC." The 2009 data show that private-sector job-bias charges (which include those filed against state and local governments) alleging discrimination based on disability, religion and/or national origin hit record highs. The number of charges alleging age discrimination reached the second-highest level ever. And continuing a decade-long trend, the most frequently filed charge with the EEOC last year were charges alleging discrimination based on race (36 percent), retaliation (36 percent) and sex (30 percent). The EEOC noted that multiple types of discrimination may be alleged in a single filing. The near-historic level of total discrimination charge filings may be due to multiple factors, including greater accessibility of the EEOC by employees and a greater awareness of their rights. But the biggest factor by far, says employment attorney Ron Chapman, is the economy. "These days, employers are quicker on the draw when it comes to layoffs," says Chapman, of Ogletree Deakins in Dallas. "On the flip side, individuals who are terminated are much less likely to find another job in this market and are therefore more likely to turn to another source of revenue -- which often takes the form of a lawyer, working on a contingency basis, who's willing to file any claim against an employer, regardless of how frivolous." The economy aside, social changes also appear to be driving certain types of workplace discrimination filings. The growing acceptance of openly gay and lesbian employees in the workplace has been accompanied by a rise in same-sex harassment charges, says employment attorney Elaine Koch. "In the past, homosexual employees tended to keep their sexual orientation private -- that's increasingly rare these days, but it's also led to more of these types of charges," says Koch, who serves as global leader of the employment and labor group at Bryan Cave in Kansas City, Mo. The EEOC does not keep statistics on same-sex harassment charges, but sexual harassment charges filed with the agency by men have increased from 9 percent of all such charges in 1992 to 15 percent in 2006 (the last year for which statistics are available). Last year, the Cheesecake Factory restaurant chain paid $340,000 to settle a suit brought by the EEOC on behalf of six male employees who claimed they were subjected to same-sex harassment. In the Cheesecake Factory settlement and the landmark Oncale vs. Sundowner Offshore Services Inc. ruling by the Supreme Court in 1998, in which the high court ruled that workers can file sexual -harassment charges even when the perpetrators are of the same sex, the harassment described by the plaintiffs appeared to have more to do with bullying behavior on the part of the perpetrators than actual sexual desire. However, same-sex harassment charges can also result from workplace affairs gone awry, says Koch. "There are more workplace affairs going on in the workplace than ever -- straight and gay -- and when these affairs go south, sexual-harassment charges are often the result," she says. Koch adds that, as with any workplace-harassment charge, HR must take such allegations seriously and conduct a full investigation. Complaints to the EEOC aren't the only legal problems HR leaders should be worrying about. Highly experienced class-action plaintiffs' attorneys are honing their techniques and coming up with ever-more sophisticated ways to go after employers, especially in wage-and-hour disputes, says attorney Gerald Maatman. "You have more and better lawyers parachuting in from securities-law litigation into employee class-action lawsuits," says Maatman, co-chair of Chicago-based Seyfarth Shaw's complex discrimination litigation practice group. "This area is attracting a lot of legal talent." Maatman oversaw his firm's sixth annual Workplace Class Action Litigation Report, which analyzed 715 class-action and collective-action court rulings and found a 44-percent increase in 2009 in non-government wage-and-hour settlements, compared to 2008. Plaintiffs' attorneys are also becoming more skilled at finding their way around laws intended to limit the size of jury awards, such as the Class Action Fairness Act of 2005, he says. That law gives the federal courts greater jurisdiction over class-action lawsuits in which the plaintiffs include residents of more than one state or the size of the claim in dispute exceeds $5 million. The theory is that federal courts are less likely to grant large awards than their state-court counterparts, says Maatman. However, plaintiffs' attorneys have found ways around the law by "segregating" their cases -- filing multiple wage-and-hour lawsuits against employers with multistate operations with the same allegations but in different states with different plaintiffs, he says. "Plaintiffs' lawyers believe it's better for their plaintiffs to be in state court rather than federal court," says Maatman. Ultimately, Chapman and Maatman both agree that the best way for employers to avoid being sued is to ensure that managers are trained on fair and proper termination procedures and to have fair and consistent dispute-resolution processes in place. "Having a rigorous workplace due process is often overlooked as the antidote to a lot of these problems," says Maatman. "More often than not, if employees feel like they've at least been listened to and that time has been spent investigating their complaints, they're much less likely to visit a lawyer." Employers should also resist the urge to avoid legal problems by refraining from removing problem employees, says Chapman. "Employers cannot be afraid to fire someone who's a poor performer, because you have to consider the impact on the morale of the good performers you want to keep," he says.
February 4, 2010 Copyright 2010© LRP Publications |
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© Copyright 2010 LRP Publications. All rights reserved.
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