When asked where the diversity issues in their company are, most diversity executives immediately turn to employee demographics. Comparatively low numbers of particular minorities may be obvious. An expensive statistical analysis may also reveal other problem areas. But is that enough?
One often overlooked but crucial piece of information is discrimination complaints. The Equal Employment Opportunity Commission (EEOC) saw an all-time record of charge filings in 2010, and while data has not been tabulated, the EEOC expects that trend will continue for fiscal year 2011. Those statistics are helpful to track litigation trends across the country, and are closely scrutinized by lawyers trying to read the tea leaves of how to best prevent future litigation. But these same statistics examined at the company level provide a unique look into the workforce’s perception of diversity.
For most companies, a charge filed with the EEOC is a matter for the legal department. It is handled by either in-house or external counsel, and human resources and operations are often asked to assist with investigations. A discrimination charge is viewed as a threat, and the goal when responding is to compartmentalize the problem and keep it from spreading.
Employers will strive for a swift response that will have the least impact on day-to-day operations. Once that threat is addressed and the charge is dismissed or otherwise resolved, most employers want nothing to do with revisiting the issue. This is a lost opportunity. A discrimination charge — regardless of the merits — is a barometer of employees’ perception of fairness in the workplace. Naturally, there will be opportunistic claimants who are only out to squeeze money from the employer. But most who file a charge sincerely believe there is a problem.
One challenge is collecting this information. Charges typically live in legal or some insulated arm of HR or operations. The nature of the charge, where it was filed and the specifics of the allegations are seldom tracked, or if they are, the data is kept only for legal review. With the proper database tool, however, a company can efficiently compile data for current and historical charges.
Employers can develop these programs themselves or use pre-existing tools. As each new charge arrives, it should be logged into this tool. If the opportunity and resources exist, past charges can be added to this database. The more data that is collected, the more trends will begin to emerge. With some foresight and discipline, a database can be developed that will be useful not only for the legal department, but for those interested in diversity issues.
Once an employer has all of its charge data in one place, there are different analyses it can conduct, including:
• Benchmarking against national trends: How do the charges stack up against national charge trends? For example, are there more race claims than would be expected based on EEOC national data? That could represent an employee perception that the workforce is not diverse vis-a-vis a particular protected group.
• Geographical/operational trends: Are there particular hot spots, either in a given operational division or geographical area? It may be wise to consider more focused diversity attention in those areas, even though raw numbers would otherwise suggest all is well in that region/business unit.
• Year-to-year comparisons: Comparing how particular types of charges are increasing or decreasing over time is also a key consideration. Significant increases in failure-to-hire cases would require a qualitatively different response than an increase in harassment claims.
The challenge is taking these trends and converting them into a plan to address workplace diversity issues. For example, if the data shows the employer has more gender discrimination claims than expected compared to national benchmarks, this may suggest revisiting hiring and promotion policies to determine if there may be glass ceiling or sticky floor problems. A spike in failure-to-promote claims for a certain racial or ethnic group would signal the company’s diversity efforts are potentially ineffective or, at a minimum, not being effectively communicated.
Discrimination charge data provides unique and critical insight into a workplace — a view that is lost if ignored.
Rebecca P. Bromet is a partner at law firm Seyfarth Shaw. She can be reached at firstname.lastname@example.org.