Trends in Discrimination & Harassment Lawsuits

Add retaliation claims to the list of headaches

March 5, 2017

The problem of discrimination and harassment in the workplace continues to be a big issue for employers—in part because employees are filing more retaliation claims, and because definitions are expanding. It’s important that employers be up to date on these rapidly changing issues, and that they have good resources to help protect their companies from lawsuits.

The best protection employers can have against charges of discrimination and harassment is a carefully designed and well-communicated employment policy. This article, from the National Law Review, goes over some of the latest guidance from The Equal Employment Opportunity Commission (EEOC) for these issues.

Training of management personnel to avoid behavior that can result in claims is also crucial. Investment of time and resources upfront can save companies a lot of money in the long run.

Lawsuits against employers—retaliation claims are up
According to the latest EEOC data, 45.9 percent of all charges against employers claimed retaliation under Title VII or another statute (up from just under 30 percent in 2006). This makes it the largest single area of claims that EEOC is seeing.

In addition:

  • 35.3 percent claimed race discrimination or harassment (race-based harassment claims were just 10.3 percent of all charges)
  • 29.4 percent claimed sex discrimination or harassment (sexual harassment claims were just under 7.6 percent of all charges)
  • 30.7 percent of charges involved disability discrimination
  • 22.8 percent claimed age discrimination
  • 14.2 percent claimed discrimination due to national origin or color
  • Only 4.2 percent were religion-based claims—but experts say this area is seeing a growing number of lawsuits

More awareness, broader definitions
According to Sarah Crippen, an employment attorney with Best & Flanagan, the number of discrimination and harassment lawsuits are on the rise in part because society has become more aware of the issue.

“We have broadened the definition of harassment to include not only race, but religion, age, and disability,” she said. “For employers, we recommend using a very broad definition of what harassment can be.”

Sexual orientation and gender have also become a growing area of discrimination and harassment lawsuits. State and federal regulators and lawmakers are increasingly discussing protections for gender identity and sexual orientation.

Although the new Trump Administration is considered less likely to make this a focus than was the Obama Administration, other levels of government will continue to craft regulation in this area. Court cases may further evolve the understanding of how discrimination and harassment is defined. And potential employees may consider a company’s reputation and history when choosing whether to accept an employment offer.

In Minnesota, the Women’s Economic Security Act includes “familial status” as a protected class—which means employers can’t discriminate against workers for their choice of spouse, or for decisions around becoming pregnant or adoption—or even deciding against having children.

A Focus on Retaliation
Crippen said the growing focus on retaliation means employers must be very careful to avoid giving cause for a lawsuit charging retaliation. Policies must make clear that a company will not engage in retaliatory actions against whistleblowers or those who make discrimination complaints—or their spouses, if they work for the same company.

She added that even if a discrimination complaint is not found to have merit, a company can still be found guilty of engaging in retaliatory acts.

To protect themselves, companies must communicate clearly that retaliation is not acceptable. Job training and written policies must also make clear the company’s position on discrimination, harassment, and retaliation. Definitions should be spelled out. For retaliation, a definition can include demotion, a decrease in pay or responsibilities, or changes in schedules.

Crippen notes that there are limits to what can be considered retaliation. Since a claimant is filing a charge against the company or its employees, there may naturally be hard feelings. “Some awkwardness is unavoidable,” Crippen said. “Petty slights are not retaliation.” She added that for an act to be considered retaliation, it must have a significant impact on an employee’s work.

“This is complicated,” she said. “These are some of the most difficult issues that employers deal with.”