It should come as a surprise to no one that the recently-released charge statistics from the EEOC reveal a record-breaking number of charges of discrimination filed against employers in 2010. The continued bleak economy and resulting layoffs in 2009 and 2010 are the most obvious reasons for the increased charges.
The EEOC Chair has attributed the rise to other factors as well, including EEOC outreach efforts and changes in the ADA law. Disability discrimination claims did take a bigger piece of the pie last year, rising from 23% of all claims filed in 2009, to 25.2% of all claims filed in 2010.
Some other observations from the statistics:
There has been a lot of discussion/speculation that older Americans were hit worst by the layoffs. It is interesting that, while the overall number of age discrimination charges rose slightly, the percentage of the total number of charges that were based on age discrimination actually decreased from 2009 to 2010, from 24.4% to 23.3% of all charges filed.
The brand new Genetic Information Nondiscrimination Act (GINA), which went into effect at the end of 2009, resulted in 201 charges filed. I expect that the regulations, which were released at the very end of 2010, and continued publicity and awareness of the law, will result in significantly more charges filed in this area in 2011.
Retaliation claims (which can be based on exercising one’s right under any of the protected categories) for the first time surged past race discrimination claims, which were previously the highest percentage of charges filed. In 2010, retaliation claims accounted for 36.3% of all charges filed, and race charges 35.9%. At the Delaware Department of Labor, charges filed based on retaliation have exceeded other types of charges substantially for some time. See 2009 Stats on Delaware Charges of Discrimination; and What the Charge Statistics Mean for Delaware Employers.
Looks like Delaware was ahead of the curve on this one. They don’t call us the First State for nothing!
What does all this mean for employers? Brace yourselves. Charges filed in 2010 may well lead to lawsuits in 2011. Unfortunately, the time from termination to lawsuit can be a lengthy one. Although the economy may be on its way to recovery in 2011, employers may just be starting to see the lawsuits resulting from layoffs several years ago.