Race has long been the basis of most employment discrimination charges in the US, and the “vast majority” concern African Americans, according to the Equal Opportunity Employment Commission, so it seems fitting that the agency released enforcement and litigation data for all protected groups in the US for FY2014 during Black History Month.
But while race accounted for a steady 35 percent of workplace discrimination charges in the fiscal year ended Sept. 30, retaliation as a basis for filings under federal law continued to climb, to 42.8 percent from 41.1 percent a year earlier, the data released Feb. 4 show. The filings first overtook race charges five years ago, making these the two biggest among some 10 groups.
Retaliation—discrimination against a person on the basis of their having made a charge or complaint of discrimination—is a type of bias under the jurisdiction of the EEOC. The agency, which litigates a portion of the claims it receives, processes virtually every charge made under Title VII of the Civil Rights Act of 1964 and related statutes.
The third-largest category of charges under the agency’s remit, sex discrimination, also held steady in 2014, at 29.3 percent. The top three categories account for more than 100 percent because allegations often involve multiple types of discrimination, including for religion, age and disability, the EEOC said.
The actual number of filings, overall and in each of the biggest categories, declined during the past fiscal year, the figures show. This was due at least partly to the government shutdown in its first quarter.
The increasing weight of retaliation charges, though, may have less to do with changes in the workplace than the difficulty of proving intentional discrimination.
Bennett Pine, chairman of Anderson Kill’s employment and labor group, said increased sophistication and sensitization among managers mean that no one is going to admit that they discriminated against an employee on the basis of race or some other characteristic.
“In my opinion, it is becoming more difficult for an employee to prove an employer discriminated against them,” he told Advisen. “An employee has to articulate that ‘I was doing my job and I was discharged,’ or some other action was taken,” at which point the burden shifts to the employer.
“The employer always articulates some kind of a legitimate business reason,” he said.
Mr. Pine has handled race discrimination cases, often opposite the EEOC, on behalf of corporate management.
“Once the discrimination charge is filed, the employer may become angry or frustrated,” which can lead to a retaliation claim, he said.
Noting that retaliation had “spiked up in 2014,” the EPL product leader at Willis North America, Adeola Adele, said “more training of supervisors is needed” because of how easily actions can be interpreted as retaliatory by employees.
“In renewal strategy meetings with clients, we talk about their risk profile in the eyes of underwriters,” she said. “We advise training, in particular of their supervisors, on retaliation and discrimination.”
Adele told Advisen that if a plaintiff and his or her lawyer can keep a retaliation claim alive during the life of a complaint, “it raises the stakes considerably. It can yield a higher jury verdict where applicable.”
But it is the charges behind retaliation that are at the core of today’s employment practices liability insurance.
“It is because of race and sex discrimination that EPLI exists,” Adele said.
The policies expanded in response to record-breaking settlements in race discrimination lawsuits involving black employees, such as in the case of Texaco in 1996, for a total of $176 million, and with Coca Cola in 2000 for $200 million.
Before that, exclusions for intentional discrimination meant that employers were met with denials of coverage in such cases, Adele said.
EPLI policies broadly define wrongful employment acts to include race and sex discrimination–and retaliation.
“Where we add value as brokers is, if there is a decision that could impact how a case is handled by a carrier, we make sure that coverage is triggered,” she said. “From the perspective of the insured, where there are punitive damages, depending on the jurisdiction, we make sure that these are covered, as intended.”
