Posted on February 13, 2007 3:59 AM by
Shanti Atkins
In the world of employment law, things are always evolving, changing, and adapting. Issues that were hot 10 years ago aren't necessarily at the at top of the list anymore. And if your training is based on trends from 10 years ago, it may not be doing enough to protect your organization.
So when it comes to discrimination and harassment training, what is hot right now? What should your organization be incorporating into its training programs?
The EEOC recently released its charge statistics for FY 2006. (EEOC Enforcement Statistics And Litigation) These stats give employers (and plaintiff’s lawyers) insight into what is going on in the employment law world, and give us a peek into the American workplace.
Let’s get the dry stuff out of the way. After years of declining overall charge numbers, the EEOC reported the first up-tick in filings—although very slight—since 2002. Charge filings with the EEOC (and state agencies with work sharing agreements) peaked in 2002 at 84,442, and declined to a low of 75,428 charges filed in 2005. It looked like we were on course for a steady and continuing decline in EEO charges. This decline can be largely attributed to increased employer commitment to training, and better employer policies.
In this past year (FY 2006), however, charge filings ticked up slightly (by 340) to a total of 75,768 charges. While a small increase in filings isn't alarming, digging deeper into the numbers reveals something interesting about EEO law trends.
The most notable trends that I'm tracking right now include:
PREGNANCY DISCRIMIINATION ON THE RISE: Sex discrimination numbers have historically hovered around 24,000-25,000 charges per year. This includes charges for sex discrimination, sex harassment, and pregnancy discrimination combined. In recent years, the filings have dipped to a low of 23,094.
Even though the overall numbers have declined, pregnancy discrimination charges have increased by 23% during the past decade. They actually reached their peak in 2006 at 4,901 charges. To top it off, the EEOC has actively pursued some high profile pregnancy discrimination cases. (Philadelphia Retailer Announces Company-Wide Discrimination Training and Innovative "Secret Shopping" Program).
What doesn’t mix well is employers who don’t "get it" (pregnancy discrimination is against the law) and women in the workforce who do "get it", and who need to keep their jobs. Adding to the phenomenon is the fact that the US scores rather poorly on a global scale vis-à-vis family-friendly workplaces. When American women compare themselves to women in other industrialized countries, they may be more inclined to fight for the limited rights they've been granted. (U.S. Lags In Family-Friendly Workplaces: Study Shows U.S. Companies Far Behind Other Nations In Maternity Leave, Sick Days).
NATIONAL ORGIN & RACE – A MUST WATCH: The other area employers must continue to watch is national origin and race discrimination. National origin discrimination charges have been on the rise in the past decade, increasing by 24%. As we look to the future, our workplaces will be impacted by major demographic shifts and increased globalization. In addition, Generation Y and Generation Next will be joining our workplaces. By all accounts these generations are more diverse, and more accepting (and expectant) of diversity. Whether they'll be willing to speak-up and speak out—and how they will choose to do it—will be worth watching. (Judy WoodRuff's PBS Documentary--Generation Next. Speak Up. Be Heard.)
BIGGER & BIGGER & BIGGER: The EEOC has been active on the litigation front. They see litigation as an important tool for educating employers and correcting problems. During the past several years, the EEOC has filed between 400 and 421 suits per year. But what's critical is the EEOC’s stated intent—they are looking for and taking cases to court that have a broad impact on the workplace. (EEOC FY 2006 Performance and Accountability Report).
This trend of bigger is better is reflected in the recent decision to uphold the largest ever employment law class certification—up to 1.6 million former and current female Wal-Mart managers. (9th Circuit Opinion Upholding Class Certification). Contemplating the potential damages for such an action is staggering.
Employers must now be mindful that decisions that were once viewed as purely individual manager actions (and thus not appropriate for class certification) may still land an employer in class action hot water if the facts are right. So what should employers expect? That plaintiffs’ attorneys will attempt to copy this approach in cases we once thought were not amendable to class certification. At a minimum, class certification creates nice leverage for settlement.
Best advice? Make sure that your training program is sophisticated enough (and updated enough) to address the current issues and trends. As the world of employment law changes, adapts, and evolves so must your organization’s approach to training. Failing to do so can leave your employees under-trained and your organization exposed to unnecessary legal risk.
Tags:
discrimination,
EEO,
EEOC,
Federal Harassment Training,
harassment,
pregnancy,
training,