WORKPLACE LAW -
Discrimination Complaints on the Rise
Question:
I hear in the news about lawsuits concerning discrimination in the workplace, but I do not know anyone personally who has ever had the problem. Is discrimination that common of a problem at work?
Answer:
Under both California and federal law, an employer cannot discriminate against or harass an employee or job applicant based on the individual’s membership in a “protected class.” Under federal law, the protected classes include race, color, religion, sex, and national origin. The protected classes under California law are much more expansive and include race, color, religion, sex, national origin, ancestry, citizenship, disability, medical condition, age, religion, creed, pregnancy, sexual orientation, marital status, and veteran status.
In California, employees, as well as job applicants, who feel that they have been subjected to discrimination or have been the victims of harassment, can file a complaint, also known as a charge, with the U.S. Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH). The EEOC is the federal agency with jurisdiction in this area, and the DFEH is the California state agency.
The EEOC recently reported on the statistics it maintains on the number and types of discrimination complaints that it receives. According to the EEOC’s records, in 2007, it received 82,792 complaints from private sector workers in the United States, up from 75,768 in 2006. That number represents a nine percent increase in the number of discrimination charges filed with the EEOC as compared to 2006. It also is the highest volume of complaints received by the EEOC in five years, and the largest increase since the early 1990’s. Race, retaliation, and gender were the most frequently alleged bases of discrimination with race representing 37% of the complaints, retaliation representing 32.3% of the complaints, and gender representing 30.5% of the complaints.
The EEOC also reported that complaints based on pregnancy discrimination (which under federal law falls under sex discrimination) increased 14 percent reaching the highest number in the history of the agency. Additionally, sexual harassment filings increased for the first time since 2000, up by four percent over the filings in 2006. Sixteen percent of the sexual harassment complaints were filed by men, which is also a record.
Naturally, this increase in complaints had a financial effect on employers. The EEOC recovered $345 million in monetary relief for individuals claiming job discrimination in 2007, representing a 26 percent increase over 2006.
It is difficult to determine the reason for the increase in filings. The EEOC attributes it to a combination of possible factors including the fact that an increasing number of employees are aware of the laws concerning discrimination and harassment. The EEOC also lists as possible factors changes in economic conditions, increased workplace diversity, and demographic shifts in the labor force. Unfortunately, however, this increase is also likely the product of discrimination and harassment that still go on in the workplace despite a heightened awareness of these issues.
What can an employer do to prevent discrimination and harassment in the workplace? As you may know, in California, employers with 50 or more employees are required by law to provide sexual harassment prevention training to their supervisory employees every two years, which could account for the rise in harassment complaints, especially those filed by men. Although the law does not require that the training also be on the subject of discrimination, training presents a good opportunity to discuss discrimination. Additionally, although the training is only required for supervisory employees, and is not required for smaller employers, it is worthwhile for all employers to provide sexual harassment prevention training to all of their employees.
California law also requires employers to display the DFEH poster on discrimination in employment, and to distribute its information sheet on sexual harassment, or a sheet with equivalent information, to its employees. The poster and information sheet can be obtained at the DFEH website at www.dfeh.ca.gov/publications.
Employers must have in place an internal complaint process for reporting discrimination and harassment and have a written policy on that process so that employees know what to do and whom to go to when they feel they have been the victims of discrimination and/or harassment. Employers with non-English-speaking employees should ensure that those employees understand the policy as well. Employers should also have in place a policy for responding to and investigating such complaints, and ensure that the policy is consistently followed. If an employer has a good policy in place, follows that policy, and addresses an employee’s complaints as soon as they arise, there is a greater likelihood that these complaints can be resolved without any form of litigation, and that harassment and discrimination in the workplace can be reduced.- - - - - - - - - - - - - - - - - - - - - - - - - -
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