Thursday, January 28, 2010

EEOC discrimination complaints near record high, while discrimination findings near record lows...

Employment discrimination charges were filed with the Equal Employment Opportunity Commission (EEOC) in 2009 at near record levels. According to the EEOC's annual report, the agency received 93,277 private sector discrimination charges in 2009, the second highest number in 20 years. The Performance and Accountability Report FY 2009 (PAR) noted that the number of private sector charges is projected to exceed 100,000 by the end of fiscal year 2010.

According to the EEOC's fiscal year data, which ended Sept. 30, 2009, three types of discrimination complaints increased over the last year. Disability complaints increased by 10 percent, from 19,453 to 21,451. National origin complaints increased 5 percent, from 10,601 to 11,134. Religious discrimination claims increased 3 percent, from 3,273 to 3,386.

The number of charges alleging age-based discrimination reached the second-highest level ever - 22,778 compared to the 2008 record high of 24,582.

Continuing a decade-long trend, the most frequently filed charges with the EEOC in 2009 were complaints alleging discrimination based on race-based discrimination (36 percent), retaliation (36 percent), and sex-based discrimination (30 percent).

But more interesting and far more illuminating are the statistics on findings of reasonable cause. According to EEOC data released on their website, very few cases ever see the light of day.

Of the 68,710 complaints that were filed on the basis of violations of Title VII of the Civil Rights act, only 188 resulted in lawsuits. (That's 0.27%)

Of the 11,948 sexual harassment claims resolved by the agency, once you subtract the settlements, withdrawals and administrative closures, 11.6% were found to have probable cause - 88.4% rejected

Of the 2,958 religious discrimination charges resolved by the agency, once you subtract the settlements, withdrawals and administrative closures, 7% were found to have probable cause - 93% rejected

Of the 31,129 racial discrimination charges resolved by the agency, once you subtract the settlements, withdrawals and administrative closures, only 5% were found to have probable cause - 95% rejected

And of the 20,529 age discrimination charges resolved by the agency, once you subtract the settlements, withdrawals and administrative closures, only 4.5% were found to have probable cause - 95.5% rejected

Now why is that you ask? Is this a sign of hope? Does this mean that we are actually becoming that post-racial society we'd heard so much about? Well, I would suggest an alternative theory.

I believe that the numbers are indicative of an attempt to eliminate discrimination by fiat. Lawmakers, politicians, business interests, and lobbyists are quickly making discrimination a thing of the past by changing the rules and making it impossible to prove... Consider the following:

In Gross Vs. FBL Financial Services, the Supreme Court ruled that a plaintiff in an age discrimination case must present 'direct evidence' (which is essentially the equivalent of a smoking gun) of discrimination before the burden shifts to the employer to show that their actions were not discriminatory. Now typically in a discrimination case, the employee knows how they were treated, what was done to them, and what was said, and they then infer that a discriminatory act has taken place. Plaintiffs present their case along with prima facie evidence of discrimination, and then the burden shifts to the employer to refute the allegations. This is a necessary structure because generally speaking, the 'direct evidence' (statements of intent to discriminate, documents, notes or records showing intent) would be in the possession of the employer and would only be available to the plaintiff through the discovery process. But in Gross Vs. FBL, the Supreme Court changed all that... They ruled that unless the plaintiff can produce 'direct evidence', the employer shall have no burden of proof and the case may be dismissed by summary judgement without discovery.

In Iqbal Vs. Ashcroft, the Supreme Court ruled that even if an entity or agency takes an action that has a discriminatory outcome, their actions may be protected unless a plaintiff can show that the discriminatory outcome was the primary or the "but for" reason the initial action was taken. In other words, if I walk into my place of business and fire all the Albanians because I simply don't like Albanians - That would constitute an act of discrimination. But if I walk into my place of business and fire all the Albanians because I'm trying to purge my company of theives and liars, and to accomplish that I fire all of my Albanian staff - That might actually be protected because their Nationality was not the primary reason for their termination.

In Philips Vs. the Ford Motor Company, the Courts ruled that even though Mr. Philip was able to show that he was passed over for promotions and was the subject of unfair treatment; Even though Mr. Philips was able to show that other Black employees at the Company were also passed over for promotions and were treated similarly; And even though there were members of the Company's Senior Staff who were willing to corroborate Mr. Philips claims, Mr. Philips case did not meet the legal standard for a discrimination claim. You see, in discrimination cases there is often a requirement that the plaintiff be able to show that other 'similarly situated' employees are receiving the same or similar treatment. In this case the Courts decided that the term 'Similarly Situated" could have alternative interpretations and that the Judges should have the discretion to decide which to apply. In this particular case, the judges decided that although the other Black employees were receiving the same or similar treatment, since they weren't in Mr. Philips actual department, on his shift, and serving under his supervisor, they would not be considered as "similarly situated" and therefore while they noted that Mr. Philips was the recipient of disparate treatment, they denied his claim of discrimination.

and there are many, many others...

Our Legal Protections are in crisis. Many of the laws and protections that the previous generations fought so hard to secure are being stripped away by courts hostile to Civil Rights and Political gamesmanship in Washington.

Quite frankly, many of us in the Civil Rights community were asleep at the switch when the term "Similarly Situated" was redefined, when the term "Strict Scrutiny" was redefined, when the burden shifting framework for discrimination cases was redesigned in age discrimination cases, when "direct evidence" became a requisite for avoiding summary judgement, when "disparate impact" protections were openly challenged (Justice Scalia even commented that he wishes he could review the original language in the Civil Rights act), when the Civil Rights Division of the Department of Justice was directed to shift its focus towards Religious Discrimination, when Public Defenders offices across the country were (and still are) severely underfunded, and when the EEOC was understaffed and underfunded.

We now sit at an interesting nexus: One the one hand we have a record number of American's coming forward, filing claims, and seeking redress. And on the other hand we have investigatory agencies stymied by years of flat funding and staffing cuts, radical decision-making by activist courts, and a Society seemingly too eager to declare "mission accomplished" on issues of race and discrimination, when the work clearly is not finished...

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