The Equal Employment Opportunity Commission (EEOC) has finished up its best three years in history in terms of the number of charges filed, the total dollars recovered, and the reduction of backlogged charges. EEOC claims and total dollars recovered from employers hit an all time high ($319 million) in FY 2010. Charges filed in FY 2010 were up 7.1% from the previous year to 99,022.


A combination of factors attribute to this trend. The EEOC’s authority has been expanded through legislation; the ADA Amendment Act, the Genetic Information Nondiscrimination Act (GINA) and the Lily Ledbetter Fair Pay Act. The Commission hired additional employees and made the largest investment in employee training in over a decade. EEOC is expanding its outreach efforts; last year reaching out to 250,000 people. The EEOC continues to build a systemic enforcement program to span the country. Efforts to reduce the backlog of cases has also seen success. Plus, unemployment significantly contributes to claims filing.


The EEOC now has a full slate of Senate approved commissioners who are committed to the Commission’s continued strength. Jacqueline Berrien was recently confirmed as the EEOC Chair, along with Chai Feldman and Victoria Lipnic as commissioners and David Lopez as general counsel. The four join Stuart Ishimaru and Constance Barker. “The EEOC is on the path toward rebuilding and on track to make further progress in the upcoming fiscal year to more efficiently and effectively enforce the federal laws prohibiting employment discrimination,” according to Berrien. Berrien was the associate director-counsel of the NAACP Legal Defense and Educational Fund. Feldman met some resistance to her appointment because of her strong support for the rights of gays, lesbians, bisexuals and transgenders. Lipnic was an attorney with Seyfarth Shaw and served as assistant secretary of labor for employment standards. Lopez has been employed by the EEOC since 1996.


Employers must recognize their need to be prepared, to understand their responsibility to assure a healthy, respectful work environment and be able to demonstrate evidence of their efforts. Having a policy that is up to date is not enough. The U.S. Supreme Court and the EEOC require employers to provide their workforce effective anti-discrimination and anti- harassment training on a periodic basis. Documentation of effective training is a powerful defense of any allegation of discrimination or harassment.



Are Employers Required To Train All Employees?

• There is no law in Indiana that requires all employees to receive effective periodic training.
• Federal sentencing guidelines punish employers who cannot present documentation of effective training.
• Faragher and Ellerth (1998) established the first Supreme Court “mandatory training guideline.” To have an affirmative defense, employers must show they have a sound anti-harassment policy and provide periodic training to all employees about the policy.
• Kolstad (1999), another Supreme Court decision added that training should go beyond harassment and include discrimination training. The decision stated policies are not enough. Good faith effort to educate all managers will establish a “Kolstad Defense,” a punitive damage defense.
• Mathis V. Phillips Chevrolet (2001) resulted in the “reckless indifference” decision. Managers with hiring authority in ignorance of discrimination laws are an extraordinary mistake for a company to make…amounting to reckless indifference.
• Properly conducted training clarifies behavioral expectations to establish a respectful work environment. This training is the most effective and least costly employer liability insurance.

Legislative Update

NLRB Gaining Ground


The National Labor Relations Board (NLRB) has issued complaints against a few companies for terminating employees who made disparaging remarks about the companies over social media sites. Decisions have yet to be reached. One hearing is set for later this month. New social media policies need to be reviewed again to ensure that concerted activity is protected.


Laws Don’t Protect Liars


A recent 7th Circuit national origin and age case resulted in a positive outcome for Boehringer Ingelheim Pharmaceuticals. The plaintiff, Prakash Naik was terminated after his call records to physicians were found to be falsified. A younger, non-Indian replaced Naik. The company demonstrated other sales representatives were found to falsify call records and none remained employed.


Reminders

• Post OSHA 300 Log from February 1st to April 30th.
• GINA (Genetic Information Non Discrimination Act) becomes effective January 10th.

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