Employers Embrace Enhanced Compliance & Prevention Efforts to Manage Escalating Risk in the Face of Expanded EEOC Enforcement Efforts

Just released Equal Employment Opportunity Commission (EEOC) charge statisticsfor FY 2010 set yet another record – both in number of charges, and total dollars recovered from employers. On the heels of two consecutive years of record high charges in 2008 and 2009, the 2010 statistics demonstrate a resilient and powerful trend of increased exposure to costly discrimination claims.

The total number of charges filed in FY 2010 rose to a record 99,022, up 7.1% from FY 2009. While the agency has not yet released the charge details by protected category, employers can expect to see retaliation, race, religious and disability discrimination top the list as they did in 2009.

The rise in EEOC charges is not surprising. The ADA Amendment Act, the Genetic Information Nondiscrimination Act, and the Lilly Ledbetter Fair Pay Act have expanded the EEOC’s statutory authorities, making it easier to file a discrimination claim.

Continued high unemployment is also a major factor in these numbers. Significant layoffs and terminations, coupled with a scarcity of alternative employment, has drastically expanded the pool of potential claimants and litigants. Given our “jobless recovery” employers can expect to see the trend of rising discrimination claims continue into 2011.

Along with the number of charges filed, the EEOC is boasting a record $319 million recovered from employers -the highest level in the Commission’s history. The agency is crediting the increase to easier filing procedures and extensive training for their employees – both part of a bigger systematic initiative to more efficiently and effectively enforce discrimination laws. The EEOC’s increased efforts are clearly working. Despite the surge in charges, the agency was able to keep its backlog relatively constant from 2009-2010.

The shift in control of the House of Representatives will also drive even greater enforcement activities in the coming year. Though Republicans now control the House, the Obama Administration does not need Congressional approval to work through federal agencies (like the EEOC) to enforce existing laws. So in 2011, the Administration will undoubtedly place even greater emphasis on enforcement.

The EEOC is better equipped than ever to investigate the record number of claims being filed – and employers need to be prepared. Now’s the time for organizations to enhance their comprehensive anti-discrimination policies to cover all forms of discrimination.

But remember, employees rarely read policies and policies alone do not effectively guide and change behavior. U.S. Supreme Court and EEOC guidelines require companies to provide the entire workforce with effective and periodic training. Being able to prove that such preventative education programs are in place can help employers to establish a robust and valuable litigation shield that can help to eliminate claims, and to significantly reduce damage awards.

With both strong policies and effective anti-discrimination training, employers will be well equipped to avoid the rising tide of EEO claims. But if the EEOC comes knocking on your door, effective training can help to assert powerful affirmative defenses that can save your organization millions.