By Richard D. Alaniz
In 2011, the US Equal Employment Opportunity Commission (EEOC) received a record-setting number of charges from those claiming employment discrimination: 99,947 in fiscal year 2011, compared to 99,922 in 2010, and an increase from 82,792 in 2008.
What do these national statistics mean for employers? With fifteen districts covering the fifty states and US territories, it has been difficult for employers to glean much information about how the EEOC's priorities and actions - as well as the increase in discrimination charges - could affect them directly.
Fortunately, that has now changed. For the first time, the EEOC has revealed how many discrimination charges and which types of charges have been filed in each state and territory since 2009. The information is available on the EEOC website, and the EEOC has pledged to update the data every year.
Now, instead of just knowing that the EEOC filed 37,334 retaliation claims in 2011, companies can find out exactly how many of those specific types of charges were filed in states where they have sites and offices. Employers in Texas now know that their state led the nation in discrimination charges last year. Those in California will learn their state had the second highest number of religious discrimination cases, while Georgia had one of the highest rates of sex discrimination charges.
"For the second year in a row, the EEOC received a record number of new charges of discrimination", said EEOC Chair Jacqueline Berrien in a statement. "Nevertheless, the hard work of our employees, combined with increased investments in training, technology, and staffing in 2009 and 2010, and strategic management of existing resources, made 2011 a year of extraordinary achievements for the EEOC."
Across the country, retaliation claims are the most common types of charges the EEOC files, and age and disability claims also constitute a large percentage. According to the EEOC, race and sex discrimination charges declined throughout the country last year.
Nonetheless, employers now have more information than ever before about EEOC discrimination charges. This information can help companies identify the EEOC's priorities in their states, then target areas where they may need to increase awareness and training in order to insulate themselves from potential lawsuits.
For state-level data, the EEOC lists information for a variety of discrimination charges: race, sex, national origin, religion, color, retaliation, Title VII of the Civil Rights Act of 1964 retaliation, age, disability, Equal Pay Act of 1963, and the Genetic Information Nondiscrimination Act of 2008 (GINA).
The EEOC website also includes a spreadsheet for 2009, 2010, and 2011 that lists the total number of charges received in each state and how that compares to charges filed nationwide. The EEOC also breaks down the total number filed across the country, the percentage of each state's charges as a total of charges filed across the country, and the percentage of each category of charges as part of the state's total.
For example, in Arizona:
- The EEOC filed a total of 2,854 discrimination charges in 2011, which represent 2.9 percent of the total discrimination charges the EEOC filed across the country.
- Of those, 613 were race-based discrimination claims, which represent 1.7 percent of the total race discrimination charges the EEOC filed last year.
- Of all the charges that the EEOC filed in Arizona in 2011, race-based charges made up 21.5 percent.
- The number of race-based discrimination charges increased in Arizona in 2011, from 536 in 2009 and 563 in 2010; however, those charges represent a declining percentage of charges filed statewide.
Even a quick look at the EEOC data offers some interesting insights into enforcement and priorities.
- According to the EEOC, 15 percent of religious discrimination cases throughout the United States were filed in Texas in 2011, and nearly 15 percent of all national origin discrimination charges throughout the United States in 2011 were brought in the Lone Star State.
- Slightly more than 8.1 percent of the total US cases in 2011 were filed in Florida, including 12.2 percent of national origin cases, 8.7 percent of retaliation cases, and 8.4 percent of sex discrimination cases.
- California made up 7.2 percent of all EEOC charges, including 11.5 percent of national origin charges, 9.5 percent of religious discrimination charges, and 6.7 percent of race charges.
- Illinois accounted for 6.1 percent of total charges, with 5.6 percent of all race charges.
- Georgia recorded 5.6 percent of all discrimination cases, including 6.8 percent of race-based discrimination claims and 5 percent of retaliation claims.
The data also shows how new types of discrimination claims are growing. Last year, in the first full year of GINA enforcement, the EEOC received 245 charges. Slightly more than 10 percent of all GINA discrimination charges were filed in California, 9.4 percent were filed in Illinois, and North Carolina received 6.5 percent of all GINA discrimination claims.
State-specific data also offers a glimpse into changing enforcement activity. The number of discrimination cases in South Dakota nearly doubled between 2009 and 2011, from 37 to 67. In Montana, the number of cases fell from 37 in 2009 to 21 in 2011.
What to Do Now
- The more employers know about the EEOC's priorities and actions, the better prepared they can be to head off problems and prevent EEOC discrimination charges.
- Employers should review the charge information that the EEOC has made available to understand exactly how many and what types of charges are being brought in the areas where their company has sites and offices.
- Companies should compare the statistics to any charges that the EEOC has brought against it. If a company has a significant number of charges in a state where such claims are fairly rare, employers need to understand why this is happening and how to prevent it in the future.
- When reviewing the data, employers should be sure to consult with experts in HR and their attorneys. There may be a variety of reasons that more types of charges are filed in one state than another. Some of it may be population based, since states with more people and businesses are likely to face more enforcement activity from the EEOC. The economy could also play a role; in states where more businesses are struggling and unemployment is high, employees and former employees may be more likely to pursue charges of perceived discrimination. Some types of industries, which may be more plentiful in particular states, could receive a disproportionally high number of certain types of discrimination charges.
Review Information and Policies with HR and Attorneys
Companies should also work with internal and external experts to understand how they can use the data to proactively decrease the chances of discrimination charges being filed against their company.
They should review policies and training in light of past and current EEOC enforcement activities and make any necessary changes to minimize their exposure, including ensuring their handbooks are up to date.
Attorneys can offer insights into specific enforcement priorities of directors and regional attorneys in each district. They can also explain how different city and state laws regarding discrimination could impact the potential number of charges brought by the EEOC, which operates at the federal level.
Look at the Bigger Picture
While EEOC state-by-state data is extremely helpful, employers should consider it as part of a larger risk-management strategy. Companies should regularly review their training policies and refresh educational efforts for new hires, current employees, supervisors, and hiring managers to ensure they are current with new EEOC laws and guidances.
It's an old business adage that you can't manage what you can't measure. Thanks to increased transparency by the EEOC, companies can measure the types of discrimination claims most common in the states where they operate. With this type of information, employers can begin to better manage their exposure to discrimination claims.
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About the author:
Richard D. Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over thirty years, including stints with the US Department of Labor and the National Labor Relations Board. Rick is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article can be addressed to Rick at (281) 833-2200 or [email protected].