2015 EEOC Statistics and EPLI: Why Are Retaliation Claims Increasing?
The Equal Employment Opportunity Commission (EEOC) released its litigation and enforcement statistics for fiscal year 2015, and as usual, there are several stories in the annual report. My first thought is always to see if the same trends play out in our own EPLI program. Many of them do.
Among the 2015 highlights, the EEOC received 89,385 charges of workplace discrimination, which is only slightly higher than 2014 experience and the first year of increase since 2010. This is a story of the economy. Charges peaked during the recession and fell when employment rates improved. We cannot yet say if the slight uptick - less than 1% - signals the start of an upward swing or leveling off. We can say that the 2015 charge volume is still significantly higher than in the pre-recession years, and we expect it to remain so.
The year-end data also shows that Retaliation was (again) the most frequently filed employee complaint, present in 45% of all private sector charges filed with the EEOC. Retaliation charges grew by nearly 5% since 2014 and, more dramatically, 78% since 2005. Allegations of race, disability and sexual harassment continue to remain in the top four as they did in 2014, but with no major volume change. However, even a small increase was enough to push disability claims to an all-time high.
What is driving the strong growth in retaliation charges?
Retaliation occurs when an employer takes an adverse action against a covered individual because he or she engaged in a protected activity. The continuing surge can be attributed to employees becoming better educated about their rights under federal, state and local civil rights laws. Also, the U.S. Supreme Court clarified the requirements for individuals attempting to prove intentional on-the-job discrimination. In doing so, the courts made it easier for plaintiffs to avoid summary judgment and having their case dismissed. Retaliation claims have a much higher success rate and jurors are more willing to accept the employee was treated differently due to his or her complaint of sexual harassment and discrimination.
Looking at our own claim experience, we also see a moderation in overall claim activity in keeping with the economic cycle, but more retaliation allegations included in those claims. Typically, they are added to discrimination charges rather than standalone claims. We have not seen any spikes in race, sex or disability discrimination lawsuits; equal pay and genetic information discrimination charges have yet to gain traction in the small business sector.
Across all types of claims, I often notice underlying performance issues, which speaks to the value of active performance management and documentation. Strong performance management is one form of risk management in the employment arena, which leads to my final trend observation.
We see more insurers promoting risk management services with agents and insureds, and we work with them to support those efforts. Online training at Workplace Risk Solutions, a website available to businesses buying Employment Practices Liability Insurance (EPLI) with many insurers, makes it easy to educate managers and supervisors on how to prevent retaliation and other employment claims. There is no cost to take the online courses and short videos offer more bite-size loss prevention lessons. This trend just might keep some businesses from showing up in the 2016 EEOC charge statistics.