2011 EEOC Statistics Reveal Disturbing Trends
Total charges were 99,947 for 2011, setting a new record. Despite the record number of charges, the EEOC, for the second year in a row, resolved more charges than it took in. Total resolutions increased seven percent over 2010. Approximately, 78,136 charges are still pending. As far as litigation in 2011, the agency filed 300 lawsuits resulting in $91 million for claimants. The number of lawsuits filed has increased for the past three years.Retaliation claims saw a modest increase and were the most numerous at 37,334. Retaliation claims are easier to prove than traditional discrimination charges and, should a discrimination charge be dropped or summarily adjudicated, the retaliation claim usually survives for a jury’s determination. Race discrimination charges followed retaliation with 35,395 charges.The other three most frequently cited allegations were sex, disability and age discrimination.
The EEOC’s enforcement of ADA claims produced the greatest increase in monetary relief last year. Administrative relief for ADA claims increased almost 35.9 percent from $76.1 million in 2010 to $103.4 million in 2011. While the increase in the number of ADA claims is no surprise, what is revealing is that complainants with treatable impairments, like back impairments, depression, and diabetes, are seeking protection of the law more than complainants with untreatable impairments, for which the law was originally passed.
A disturbing trend for employers is not so much the increase in the number of filed charges, but rather the types of charges being filed; specifically, retaliation and disability claims. Such charges are easier to prove, leaving employers few options other than settlements or jury trials.Here is the breakdown comparison of increases and decreases in charge filings since 2010:
- Any personnel or employment record made or kept by an employer must be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later. In the case of involuntary termination of an employee, the personnel records of the individual terminated shall be kept for a period of one year from the date of termination.
- Where a charge of discrimination has been filed, or an action brought by the EEOC or the U.S. Attorney General, against an employer under GINA, the employer must preserve all personnel records relevant to the charge or action until final disposition of the charge or the action.
According to the employee, she regularly arrived at work between 15 and 25 minutes before her 5:00 a.m. shift. She then spent at least 20 minutes unlocking doors, turning on lights and preparing coffee for other employees. No one told her she needed to come in before her shift. She came in early because she felt it would have been a “hassle” to show up precisely at her designated start time and still get her subordinates’ workstations “up and running” so they could go straight to work when they arrived.After the employee resigned she sued her employer for overtime compensation under the Fair Labor Standards Act (FLSA).
The employee admitted that she never
4) suggested to HR that her schedule needed to be adjusted to account for her pre-shift work.The appeals court found that the employer did not know or have reason to know that the employee was working prior to her shift.
To state a claim for overtime under the FLSA, the employee must show that the employer had actual or constructive knowledge of the overtime work performed. Constructive knowledge means the employer is presumed to know something regardless of whether the employer does, in fact, have knowledge. An employer is presumed to have constructive knowledge if knowledge is obtainable by the exercise of reasonable care. Thus, if the employer should have known, exercising reasonable care, that the employee in this case was working overtime, the court may have ruled for the employee.
Note: Employers should keep detailed time records for employees. In addition, managers and supervisors must be observant and know if workers are starting to work early or staying late after their shifts to make sure there is no expectation of overtime. A policy requiring preauthorization of overtime can be an important risk reduction tool.
- Earn enough to live comfortably (24%)
- Do something I enjoy (23%)
- Increase profitability from year to year (18%)
I never said most of the things I said.
~ Yogi Berra ~
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