President Trump has appointed Janet Dhillon, an attorney from the mega law firm, Jones Day, to serve as Chair of the Equal Employment Opportunity Commission. Ms. Dhillon's background with a law firm that represents businesses is expected to bring a better appreciation of employers and the challenges they face in complying with a growing number of civil rights laws and regulations in the workplace.
The Equal Employment Opportunity Commission (EEOC) has recently released statistical data on its Enforcement/Litigation for Fiscal Year 2016 (October 1, 2015 - September 30, 2016). A total number of 91,503 Charges of Workplace Discrimination were filed in FY 2016, which is approximately a 3% increase in Charges from FY 2015. Furthermore, over the twelve (12) month Fiscal Year period, the EEOC resolved 97,443 Charges and secured more than $482 Million for affected Employees. The EEOC responded to well over 585,000 calls and more than 160,000 inquiries to its various Field Offices.
A lot has changed since the EEOC last updated its stance on retaliation claims 18 years ago. Most notably, retaliation claims have skyrocketed. In fact, the number of retaliation claims filed with the EEOC has increased 119% since 1998. Retaliation claims are so common that they accounted for nearly 45% of all EEOC charges filed in 2015. It is against this backdrop that the EEOC issued its most recent enforcement guidance on retaliation. Here are three big takeaways for employers:
As most private employers are well aware, numerous federal and state government agencies conduct on-site investigations and have been doing so for a long period of time [for example, Occupational Safety and Health Administration (OSHA inspectors) and United States Department of Labor (USDOL inspectors)]. Soon to be joining this array of "government visitors" is the Equal Employment Opportunity Commission (EEOC). The EEOC is engaging in a new and more aggressive investigation strategy. It will no longer accept an employer's Position Statement at face value and is now demanding on-site visits to interview witnesses and gather information. It is the opinion of the author that these "on-site visits" are merely "fishing expeditions" conducted by the EEOC to gather any and all harmful information it can find out about an employer, be it for the case at issue or to develop a bigger case in the future. Suffice it to say that during these investigations, the EEOC representative will do everything he/she can to "bait the hook" and catch the biggest fish.
Since I was a child back in the early 1950s, I was taught many things by my parents, including "treat others as you want to be treated" and "do not steal or take other people's property." Obviously, the Federal Court System and, specifically, U.S. District Court Judge William H. Orrick, have either never been taught these rules or they have conveniently been forgotten!
With the fiscal year of the United States Government ending as of September 30, 2013, various government agencies have issued their "Fiscal Year Reports" with regard to what they have been able to accomplish during Fiscal 2013. Two of the most important agencies as far as their effect on business entities are the Equal Employment Opportunity Commission (EEOC) and the United States Department of Labor, Wage and Hour Division (WHD).
On August 1, 2013, a Northern District of Iowa district court judge awarded CRST Van Expedited with possibly the largest attorneys' fees and costs award ever levied against the Equal Employment Opportunity Commission (EEOC). The award, totaling $4,189,296.10 in attorneys' fees and $505,146.04 in costs, came at the end of a grueling six-year battle with the EEOC over the agency's sexual harassment claims.