Retaliation Claims Are Surging

Each year, the Equal Employment Opportunity Commission releases statistics on the number of charges it received, lawsuits it filed and its monetary recovery during the prior year.

On Feb. 5, it released those statistics for 2013, along with a press release touting its collection of “the highest monetary recovery in agency history” generated solely through the administrative charge process — essentially, not counting recovery from litigation. The EEOC reported bringing in $372 million through the charge process in 2013 and another $39 million through litigation.

In addition to releasing information celebrating its ability to collect dollars, the EEOC also releases data breaking down the types of charges being filed and — new this year — information on actions employees are pointing to as the basis for claims of unlawful treatment. Retaliation — which many defense lawyers believe is the easiest claim to bring, given that even employees who are dead wrong about the underlying allegations may later stake out a retaliation claim — remains at the top of the list. The EEOC reported 41 percent of all charges filed in 2013 included retaliation as a cited basis.

A look back at the data the commission amassed between 1997 and 2013 reveals just how high the rising tide of retaliation charges has grown. In 1997, there were 18,198 charges alleging retaliation. As of 2013, that number had grown to 38,539.

Diversity executives probably have felt that surge in their own workplaces. The EEOC data also suggest that unfounded charges may be on the rise. In 1997, the earliest year for which data is posted, the EEOC closed 52 percent of retaliation charges with a “no reasonable cause” finding. But in 2013, that number was 63 percent. That is encouraging news for employers.

On the other hand, even though retaliation charges have more than doubled, the dollars being collected during the charge process have quadrupled. The monetary benefits the EEOC collected in 1997 totaled nearly $42 million. In 2013, it was $169 million. Applying crude arithmetic, employers paying out on retaliation charges in 1997 paid an average of $2,291 to resolve a charge, but, in 2013, they paid an average of $4,395.

The data on the actions employers are allegedly taking that lead employees to file retaliation charges holds some useful clues to avoid such charges. In particular, of the 38,539 retaliation charges filed in 2013, 28,770 contained a claimed issue of harassment. Presumably, this means employees who filed a claim alleging unlawful retaliation cited purported harassment as a retaliatory act. What is troubling about this is, as many employers have experienced firsthand, certain employees who see themselves as whistle-blowers also see every action taken by management or supervision as harassing.

These data underscore the need for leaders — once they become aware of a protected complaint — to monitor the working conditions and job satisfaction of the complaining employee. While some employees are seemingly never satisfied, others can be. If HR can neutralize issues before they becoming “harassing” — for example, by providing guidance to the complaining employee’s supervisor — some of these types of claims can be avoided.

One significant gap in the data released by the EEOC is that it does not include litigation enforcement data that tell us how many lawsuits with a retaliation component the commission is bringing. Instead, it lumps all the lawsuits together by the statute they are brought under, and employers cannot discern without conducting more rigorous research whether retaliation litigation by the EEOC is on the rise. With the dramatic increase in charges, however, employers should assume that such lawsuits are increasing, even if they remain proportional to the filing rates in 1997.

Whether facing an individual charge or actual EEOC enforcement litigation, it is really the steps that came before that offer employers the greatest opportunity to prevent costly litigation. The most cautious approach is to take the complaint seriously, confirm the substance and scope of the complaint in writing, investigate as thoroughly as is practical, address any substantiated wrongdoing and then watch for significant changes in the workplace.

Elizabeth A. Falcone is a shareholder in the Portland, Ore., office of Ogletree, Deakins, Nash, Smoak & Stewart. She can be reached at editor@diversity-executive.com.