Because disability and age discrimination claims have reached its highest levels ever, the EEOC is focusing its current efforts on these, specifically class actions.  They are also addressing employer discriminatory practices based on the results of background checks, specifically the use of criminal convictions and credit history reports.

The EEOC is also increasing the number of worksite investigations, as well as the scope of those investigations to include taking pictures and interviewing witnesses under oath.

Employers should note the following guidelines from the EEOC when faced with a discrimination charge:

1. Documentation is key to showing that an action taken against an employee was non-discriminatory in nature.  When answering an EEOC charge, an employer who says the employee was terminated for misconduct should include all relevant disciplinary notices.  If an employee was terminated for performance, performance reviews as well as other relevant documentation should be submitted.
2. Explain the facts alleged in the complaint, do not rely on legal arguments.
3. Treat investigators with respect, and attorneys in particular are cautioned not to “talk down” to EEOC investigators as if they do not understand the issues or the law.
4. Never speak of the employee who filed the charge in a derogatory or otherwise unfavorable light.  It simply does not mean anything and will carry no validity with an investigator.

Employers should review their policies regarding performance, misconduct and termination, as well as the use of background checks.  Most important, employers should establish progressive disciplinary procedures and stick to them, and provide critical documentation during the process to help defend any potential claims down the road.

How do you prevent discrimination claims?  The answer is simple:  training.  Employers must invest the time and money in diversity and sensitivity training for their employees.  Training is especially important because statistics current workforce trends indicate that by the year 2050, half of the workforce will be composed of people of color, with Hispanics leading the way.

If you as an employer think the cost of training outweighs the benefits, consider this:  from the years 2000-2007, jury verdicts averaged $200,000.  The range in verdicts during this time frame was $1-$53,885,000; from 2009 to mid-2009, the range was up to $1.9MM.  Including amounts paid out in settlements and alternative dispute resolution increases these numbers exponentially.

There are legal advantages to training your employees.  When faced with a discrimination charge, courts will look at the steps you as an employer have taken to prevent such incidents from occurring.  Establishing an institutionalizing a training program will enable you to establish an affirmative defense, and could also protect you against, or at least mitigate, punitive damages.

Monetary relief obtained for claimants totaled over $376 million.

The high level of charges filed can be due to many factors, according to the EEOC, including economic factors, increased employee awareness of their rights under the law, and changes in the EEOC intake process that makes it easier for employees to file claims.

The report in its entirety can be found at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

An international plumbing fixture company is settling a gender discrimination suit for $175,000.  A female employee filed a complaint alleging that the company placed her on probation despite her performance record, and then fired her a month before she was to give birth.  The settlement agreement also includes provisions for training, reporting and postings.