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2011 EEO Trends: Record Charges, New Laws & Getting Back to Compliance Basics February 24, 2011

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Page 1: 2011 EEO Trends

2011 EEO Trends: Record Charges, New Laws

& Getting Back to Compliance Basics

February 24, 2011

Page 2: 2011 EEO Trends

Reid Bowman, Esq.

• General Counsel of ELT.

• Over 25 years of HR and labor employment law experience, primarily working with multi-state employers.

• Designs strategic ethics, discrimination prevention, and employment law compliance programs.

Page 3: 2011 EEO Trends

Bruce Sarchet, Esq.• Provides advice to employers in

dealing with their most difficult and problematic employees

• Expert in workplace violence – providing counsel on the difficult legal and practical issues that arise

• Committed to crafting practical, real world solutions to problems, recognizing and balancing business realities and necessities with the need to minimize exposure to litigation. 

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Agenda1. How Today’s Economy Continues

to Shape Employment Law Risk

2. EEO Trends - the latest Charge statistics-Retaliation-GINA and ADAAA impact

3. The Future-Wage & Hour -Sexual Orientation & G.I.-Whistleblowing

4. Proactive Solutions

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How Today’s Economy Shapes

Employment Law Risk

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The Unemployment Rate Remains High

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Risk Exposure in a Jobless Recovery

• The economy will continue to shape your risk profile in 2011.

• Every 1.5% increase in unemployment drives a ~21% increase in employment lawsuit filings.

Source: The Changing Nature of Employment Discrimination Litigation, 43 Stan. Law. Rev. 983 (1991).

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Impact On Your Business • Every additional claim hits your budget

hard.– Average defense costs for single

plaintiff litigation can cost $250K+ through trial.

Source: Littler Mendelson

• Median Jury Verdicts:– Discrimination: $200,000– Whistleblower: $200,550– Retaliation: $225,000 Median settlement amount: $90,000

Employment Practice Liability: Jury Awards Trends & Statistics, 2009 Ed.

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A Question for YouIn the past year, the number of EEO charges in my industry have:

1. Increased.

2. Decreased.

3. Not sure.

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EEOC Charges Soared in 2010




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Most Claim Categories Grew In 2010


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Most Claim Categories Grew In 2010


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Ava filed a charge with the EEOC claiming that her hours were cut because of her age. Her long term partner, Kris, who also worked for the same employer, was dismissed 3 weeks later. Can Kris sue for retaliation?

1. Yes2. No

A Question for You

Page 15: 2011 EEO Trends

Retaliation – Your Greatest “Hidden EEO Risk”

• What it is: Taking adverse action against an employee or job applicant because that individual (in good faith) engaged in protected activity such as:– Filing a complaint or lawsuit,– Making an internal complaint, or– Participating in an investigation,

including an employer investigation.

• The underlying claim of harassment or discrimination doesn’t need to be proved.

Page 16: 2011 EEO Trends

What’s Protected Has Expanded

• January 2009: U.S. Supreme Court announced a new “opposition” standard:– Any time an "employee communicates

to her employer a belief that the employer has engaged in ... a form of employment discrimination, that communication virtually always constitutes the employee's opposition to the activity.”

• Opposition (aka protected activity) includes answering questions during a company investigation.

Crawford v. Metropolitan Gov’t of Nashville and Davidson County (U.S. Supreme Court 01/26/09)

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No Bright Line Test for Adverse Conduct

• Retaliatory conduct is about more than terminations or demotions.– Would the adverse conduct or

harm have the effect of discouraging a reasonable employee from making a discrimination complaint?

• No bright line test – jury to decide.

Burlington Northern & Santa Fe Railway Co. v. White (U.S. Sup. Ct. 2006)

Page 18: 2011 EEO Trends

And What’s Prohibited Is Broader…

• Under Burlington, retaliation can reach beyond the workplace:– Filing false criminal claims. – Filing a false report with an

unemployment compensation office (Steel v. Schafer, 535 F.3d 689 (D.C. Cir. 2008)).

– False references to damage job prospects?

Page 19: 2011 EEO Trends

And Continues to Expand…• January 24, 2011: U.S. Supreme Court

announced a further expansion on retaliation protections:– Because the Court believed that an

employee might be dissuaded from engaging in protected activity if her fiancé would be fired in retaliation for this protected activity, the terminated fiancé has a viable claim for unlawful retaliation.

• Door now open to claims from a wide range of undefined employees who have never engaged in protected activity!

Thompson v. North American Stainless, LP 09-291 (1/24/11)

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Race is Still the #1 Substantive Issue• Race still the top substantive

issue - - present in 35.9% of all EEOC charges – and trails only retaliation as most commonly cited basis.


• Median race discrimination

verdicts were $150,000 in federal court, but $257,239 in state court.

-Employment Practice Liability: Jury Awards Trends & Statistics, 2009 Ed.

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Keep Your Eye On Race and National Origin Discrimination

• 23% of diverse workers claim they’ve been discriminated against or treated unfairly because of their background.

– 30% of these workers said it happens at least once a week.

Source: CareerBuilder.com Survey 2008

• 61% of Latinos surveyed believe discrimination is a “major problem” that keeps them from succeeding in America – up from 54% in 2007.

Pew Hispanic Research study (October 2010)(http://pewhispanic.org/reports/report.php?ReportID=128)

Page 23: 2011 EEO Trends

Two Years of the Obama


A New Era For Civil Rights

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GINA’s Anti-Discrimination Requirements

• Passed into law in 2008; Regs effective as of 1/11/11.• Unlawful for an employer to discriminate against an individual on

the basis of the genetic information in regard to hiring, discharge, compensation, terms, conditions, or privileges of employment – Even if an employer lawfully acquires genetic information,

such information cannot be used in making employment decisions

• Unlawful to limit, segregate, or classify employees because of genetic information– No disparate impact claims

• EEOC interprets GINA to prohibit harassment on the basis of genetic information

• GINA also has retaliation protections EEOC received first GINA-based charges in 2010!

Page 25: 2011 EEO Trends

ADA Amendments Act (ADAAA)

• Effective January 1, 2009• Broadens rules interpreting the

term “disability”• Broadens major life activities• Eliminates reference to

mitigating measures• Broadens meaning of “regarded

as” disabled 25,165 disability charges filed

with EEOC in 2010, a 29% jump from 2008 (pre ADAAA.)

Page 26: 2011 EEO Trends

The Wage & Hour Agenda• Secretary of Labor, Hilda Solis:

“Make no mistakethe DOL is back in

the enforcement business.”

• Added 250 new investigators in FY ’10, increasing the total number of Investigators by 1/3

• Expected to add 90 more in ‘11 with a $20M increase in enforcement budget.

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• Of 7,312 class/collective action lawsuits filed in federal or state court in 2009, 6,052 (or approx. 83%) were wage and hour related complaints

Wage & Hour Class/Collective Actions:

The Flood Continues

Page 28: 2011 EEO Trends

Average Wage & Hour Settlements

$8.6 Million$19 Million

$29 Million

$24 Million$24.4 Million

Page 29: 2011 EEO Trends

Wage & Hour Litigation Continues to Skyrocket

Leading to …

• Increased wage and hour litigation.

• Increase in pay discrimination claims.

Page 30: 2011 EEO Trends

Sexual Orientation &

Gender Identity

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My organization’s anti-discrimination / EEO policy:

1. Includes sexual orientation.

2. Includes sexual orientation and gender identity.

3. Does not include sexual orientation or gender identity.

A Question for You

Page 32: 2011 EEO Trends

Employment Non-Discrimination Act

• Most recently passed by House of Representatives in November 2007.

– This version applied only to sexual orientation.

– Gender identity was removed.

• New Sexual orientation and gender identity bill (H.R. 3017) introduced in Congress in June 2009; hearings held 9/24/09.

• Since then, stalled in Congress.

Page 33: 2011 EEO Trends

Will End of “Don’t Ask, Don’t Tell” help revive

ENDA?• The Don’t Ask, Don’t Tell Repeal Act of 2010 was signed into law by President Obama on December 22, 2010.

• “President Obama also continues to support the E[NDA] and believes that our anti-discrimination employment laws should be expanded to include sexual orientation and gender identity.”


“..At its core, this issue is about who we are as Americans. It’s about whether this nation is going to live up to its founding promise of equality by treating all its citizens with dignity and respect.”

Obama, June 1, 2007

Page 34: 2011 EEO Trends

Sexual Orientation & Gender Identity Protections Are


Page 35: 2011 EEO Trends

Even Without ENDA You May Be Impacted

• Any employee (including a gay employee) can sue for same-sex sexual harassment.

Cromer-Kendall v. District of Columbia 326 F. Supp. 2d 50 (D.D.C. 2004)

• And, discrimination against a transgender employee can be a form of sex discrimination.

Schroer v. Billington (D.D.C. 2008)

Page 36: 2011 EEO Trends

Whistleblower Claims Enormous expansion of

statutes in US Sarbanes-Oxley False Claims Act Dodd-Frank: expands

remedies against all publicly traded companies and broad array of financial institutions.

Page 37: 2011 EEO Trends


New Whistleblower Protections – Dodd Frank Wall Street Reform

• When is it effective?– July 21, 2010– April 2011: the regulations are

due to be issued.

• What is the purpose of this new law?– “To promote the financial

stability of the United States by improving accountability and transparency in the financial system.”

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How Does This New Law Impact HR Professionals?

• In two broad ways:– Corporate Whistleblowers:

• Enhances the protections afforded to corporate whistleblowers.

• Expands the companies subject to Sox’s [Sarbanes-Oxley] whistleblower provisions.

• Relaxes the timing and manner in which retaliation claims can be made.

• Stiffens the penalties for retaliation.– Compensation:

• Companies are now required to address their overall compensation policies and practices for all employees if they create risks that are “reasonably likely to have a material effect on the company.”

Page 39: 2011 EEO Trends


New Whistleblower Protections – Dodd Frank Wall Street Reform

• The act creates a new incentive program to encourage individuals to report Securities Exchange Act (SEC) violations.

• The act allows aggrieved employees to bring a civil action in federal court.

• The act requires that prevailing employees are entitled to reinstatement, double back pay plus interest, attorneys’ fees and litigation costs.

Page 40: 2011 EEO Trends

What Steps Should We Take to Address the New Whistleblower Provisions of This

Act?• Review and update policies to

encourage employees to INTERNALLY report their reasonable good faith concerns with any issues within the company.

• Update policies to clearly articulate that you will not tolerate any reprisals or retaliation by anyone who reasonably and in good faith makes a complaint.

• Train management about whistleblower protections and the handling of whistleblower complaints.

• Develop and implement whistleblower reporting procedures for employees, and train employees how to use them.

Page 41: 2011 EEO Trends

Practical Solutions

Page 42: 2011 EEO Trends

Review and update policies and handbooks:• Are they compliant with new laws?• Are they contemporary?• Do they cover emerging issues:

– New technologies.– New protected classes.

• Consider a stand alone policy on retaliation

Tune Up Your Policies & Practices

Page 43: 2011 EEO Trends

•HR should check in with managers regularly•Especially newly promoted managers

–“How is it going?”–“Anything strange happening?”–“Any recent conversations with employees which you think could have gone better?”

Work With Your Management Team

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• Some of the changes or potential changes may be controversial and lead to heated discussions.

• Clearly communicate expectations around respect, inclusion, and expressing personal beliefs.

Be Proactive About Improper Workplace Discussions

Page 45: 2011 EEO Trends

Get the Message Out To Your Employees

• Policies and expectations must be communicated; training is essential in this environment.- Policies often don’t get read– Failing to train dramatically

increases your risk profile.– Training may be legally

required or critical for legal defense.

Page 46: 2011 EEO Trends

California Mandatory Training –

AB 1825• Requires employers who do business

in California, and who have more than 50 employees, to provide 2 hours of high quality, “interactive” harassment training to all California supervisors.

• Every 2 years.

• 2011 is a “re-train” year!

• Not just sexual harassment.

• No cap on penalties.


Page 47: 2011 EEO Trends

U.S. Supreme Court Mandatory Training Guidelines

Faragher and Ellerth (1998); Kolstad (1999)

• Train all employees on harassment prevention periodically.

• Train all managers on discrimination prevention, periodically.

• Distributing policies is not training.

• Evidence of training may provide:

• Defense to liability.

• Defense to punitive damages..

Page 48: 2011 EEO Trends

And More Federal Guidelines …

• 1999 EEOC Guidelines directs specifically that employers train employees and managers on harassment prevention.

• EEOC consent decrees and conciliation agreements routinely mandate periodic anti-discrimination training

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“[L]eaving managers in ignorance of the basic features of [employment] laws is an ‘extraordinary mistake’ for a company to make, and a jury can find that such an extraordinary mistake amounts to reckless indifference.”

Mathis v. Phillips Chevrolet, Inc., 7th Cir. 10/15/01

The Impact of a “Mandatory Guideline”

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Effective Training Should:• Include harassment, discrimination, and

other vital topics (e.g. wage & hour/pay).

• Address all forms of prohibited conduct.

• Encourage Internal reporting/whistleblowing.

• Include emerging topics like sexual orientation, GINA, and religious accommodation.

• Teach employees that respect and inclusion are core values.

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• Fully explore retaliation.

• Explore the grey areas, not just the blatant stuff.

• Comply with CA’s stringent training mandate (even if you’re not in CA).

Effective Training Should:

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• Preventing even one claim a year pays for your training. – Independent ROI study conducted

by ELT / Littler client: Training tied to annual hard cost savings of $2.2 million.

• Training decreases the settlement value of tough cases.

• Training can help an organization avoid/reduce a punitive damage award.

Training Pays Off

Page 53: 2011 EEO Trends

Presentation Slides • All attendees will receive a

follow-up e-mail in the next 48 hours with information for accessing the presentation slides and continuing education credits.

• If you do not receive this e-mail, contact we[email protected] to receive a copy of the presentation slides.

Page 54: 2011 EEO Trends

A Question for You?

If your organization may be interested in purchasing ELT’s online training solutions, and you would like an ELT Sales

Executive to follow up with you, type "YES" in the box below.

Page 55: 2011 EEO Trends

Interested in our solutions?

[email protected]

www.elt-inc.com │ 877.358.4621

Additional substantive questions?

[email protected]

[email protected]

Do not receive a follow-up email with the presentation slides within 48 [email protected]

Questions? Resources?Questions? Resources?