Delaware Department of Labor (DDOL) Office of Anti-Discrimination recently released its fiscal-year statistics relating to the charges filed and resolved in FY2009.  I posted previously about the stats, including some (hopefully) helpful charts that show the trends over time. 

Since the statistics were released, I've had some time to process the data and focus more on what is most relevant to Delaware employers. 

Charges, Charges, Charges

If you are an employer who received a Notice of Charge of Discrimination for the first time in 2009, you are not alone. There were more charges filed with the DDOL last year than any other year for which the statistics are published. In FY2009, the DDOL accepted 728 charges—an increase of nearly 20% over FY2008.

Retaliation Claims Continue to Reign as Enemy #1

It may not come as a surprise that the most-often filed charge was a retaliation charge. Charges of discrimination alleging retaliation constituted more than 70% of the charges filed last year. One reason for such a high number is that retaliation is often added as a second allegation in charges alleging other types of discrimination. Also, once a charge has been filed, it can be amended to add other claims. So, if an employee files a charge alleging gender discrimination and is subsequently terminated, she is likely to amend her charge with an additional charge of retaliation.

The increase in the number of charges filed that contain a retaliation claim is staggering. In FY2008, approximately 30% of all charges filed with the DDOL contained a retaliation claim—even less in FY2005-2007. Those numbers went up by 130% over the last fiscal year. It is fair to say that retaliation claims are, by any measure, an employer’s number one biggest threat in the context of discrimination claims.

Race- and gender-based claims enjoyed equal growth over last year—both accounting for an additional 40% of all claims filed. After retaliation, race (56.9%), and gender (46.4%) discrimination ranked as the second and third most commonly filed claims.

Defining “Success”—Reasonable Cause Findings Issued in FY2009

There is some good news for employers among these statistics. Overall, there number of reasonable cause findings issued by the DDOL remains small. On average, only 1.5% of all claims filed resulted in a cause finding. The DDOL’s long investigation periods, though, may skew these numbers. Because the average processing time for a charge is nearly a year, the reasonable-cause findings issued in FY2009 were likely issued for charges filed in FY2008.

The most successful claims in FY2009 were those based on age—reasonable cause was found in just less than 4% of all age claims filed. National origin was the second-most successful, with reasonable cause findings issued in 2.5% of those claims.

No reasonable cause findings were issued in three types of claims: (1) gender discrimination claims filed by males; (2) Asian-race claims; and (3) religious-discrimination claims.

Looking Ahead

The lesson to be learned from this data for Delaware employers is this:

The increased likelihood that your organization will be named in a charge means that you must be ever diligent in documenting the events of the workplace and being on high alert for potential issues as they arise and, especially, when dealing with an employee who complains of discrimination or harassment (formally or informally).

 

Also see:

2009 Stats on Delaware Charges of Discrimination

Delaware Department of Labor (DDOL), has published its yearly statistics for FY2009 relating to the charges of discrimination filed with its Office of Anti-Discrimination.  Here are some highlights:

It may not come as a surprise that the most-often filed charge was a retaliation charge, making up just over 70% of all charges filed.  Where a charge alleges more than one basis, each basis was counted separately, which explains why the total is higher than 100%.  It also indicates that retaliation is very often added as a second basis to a charge that alleges other types of discrimination. 

 

 

Again, not surprisingly, DDOL had a very busy year, with intakes at a five-year high.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Supreme Court’s recent decision in Ricci v. DeStefano, has put a spotlight on the confirmation of Supreme Court Justice Nominee Sonia Sotomayor.  But, for most employers, the case has much broader implications, casting further doubt on the long-term viability of employment testing for hiring and promotion decisions. Employment testing is on the U.S. Equal Employment Opportunity Commission’s (EEOC’s) “least-favorites” list for a number of years but employers, recognizing the critical nature of these decisions, continue to utilize testing as a screening mechanism.  The Ricci decision presents a good opportunity to review the laws around employment testing. 

Disparate-Treatment Discrimination

Employers that are considering using an employment test must take special care to avoid violating the federal anti-discrimination laws, particularly Title VII of Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. Title VII prohibits two types of discrimination” disparate treatment and disparate impact.  Disparate treatment is what most people think of when they think of discrimination. This involves an intentional act of discrimination.  In the employment context, an employer takes an adverse employment action, such as deciding not to hire, against an individual because of the individual’s race, sex, religion, or other protected characteristic.  In other words, you treat someone differently (disparately), because of a protected characteristic. 

Disparate-Impact Discrimination

Disparate impact, on the other hand, does not necessarily involve any animus towards an individual.  Instead, a policy or a practice (such as a test), is applied equally and without regard to membership in a protected class.  But the outcome or result disparately affects a protected class, thereby having a discriminatory impact.  Here’s an example. Let’s say an employer required all new applicants for any secretarial position to take a strength test as a prerequisite to being awarded an interview.  The test required applicants to bench press 110 pounds.  Most women applicants would not be able to pass the test and, as a result, only men would (for the most part) be awarded the positions. Because the test, which only tests physical strength, does not demonstrate whether the applicant is qualified for the position (i.e., can type X words per minute), the test would likely be found to constitute unlawful discrimination if challenged in court. If the test measured some trait or skill that was clearly related to the position being sought, the employer would have a much greater chance of success in defending the test.

The courts employ two methods to determine whether an employment test has a discriminatory impact.  First, if the selection rate for members of a protected group is statistically significantly different from the selection rate for the general pool, discriminatory impact is said to exist.  Second, there is said to be a discriminatory impact when the selection rate for members of a protected group is less than 80% of the selection rate for the group with the highest selection rate.

How to Demonstrate Job-Relatedness 

If either test is satisfied, the employer may still avoid liability by proving that the test measures job-related qualities.  To show job relatedness, the employer must prove three things: (1) that the test does correlate with successful job performance (criterion-related validation); (2) that the test actually measure the performance of job-related tasks or traits (content validation); and (3) that the trait being identified or measured by the test a trait that is a required to do the job well (construct validation). 

In our strength-test example, the employer would fail under the criterion-related prong if the employees could compare the scores of applicants on the strength test did not correlate to scores on a typing test.  For example, if the fastest typists were not able to pass the strength test, then either typing skills or strength must not be a valid criterion since it seems that applicants couldn’t score well in both.  The employer would fail under the content-validation prong if the job did require physical strength, but only leg strength and the ability to bench press any weight was irrelevant.  The employer would fail under the construct prong if the employer could show that current secretaries, who were successfully working in the job, could not pass the strength test.  If they could do the job without passing the test, then the test, by definition, does not relate to job success and, therefore, is not job related. 

Best Practices

Employment tests seem to be going out of style with employers but are still serve as a key factor in many employers’ hiring and promotion decisions.  If your organization either uses these tests currently or is considering their use, you can never be 100% sure that the test won’t lead to a lawsuit. But you can take the steps discussed below to reduce your risk. 

First, as the most basic requirement, employers must issue all tests equally and without regard to race, religion, disability, or other protected characteristic.

Second, it is the employer’s responsibility to ensure that the test has been validated and meets all three requirements discussed above. An employer that uses tests should retain a professional testing company or other expert to conduct a validation study to determine whether the test will have a disparate impact in violation of the anti-discrimination laws. The validation study must be conducted in accordance with “generally accepted professional standards for evaluating standardized test.”  In other words, you must hire a professional—home-grown tests won’t stand up in court. And remember, a test vendor’s data on the test’s validity may be helpful to your analysis but you, as the employer, are ultimately responsible to ensure that the test truly is legitimate.

Third, the employer should maintain records and retest for at least two years as a way to self-audit any potentially discriminatory impact.  What to look for in these self-audits?  Employers must evaluate the test for fairness for each race, sex, and ethnic group that constitutes a “significant factor” in its workforce.

The Dangers of “Home-Grown” Employment Tests

The EEOC has the following to say about tests that are casually adopted without having survived the rigors of validity testing:

Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.

(See EEOC Fact Sheet on Employment Testing).  This is where most employers get it wrong.  With the best intentions, an employer finds an “aptitude” test on the Internet and then “modifies” it for use during the screening process.  When clearly-qualified applicants fail the test or identify a flaw in a test question, the employer just changes the answer key or permanently strikes the “bad” question.  This is a disaster waiting to happen, isn’t it?  The test wasn’t validated in the first place (at least not that the employer could identify if questioned) and has since been changed, depending on the whims of an individual test giver or hiring manager.  That, in my opinion, is a guaranteed way to fail the EEOC’s test for discriminatory impact.

Delaware employers should prepare to add another protected characteristic to their list.  Late last night, the Delaware General Assembly passed Senate Bill 121, which would prohibit discrimination based on sexual orientation. It passed the Senate after a three-hour debate. 

The bill is headed to Gov. Jack Markell for signature.  The Delaware News Journal reports that Rep. Pete Schwartkopf (D-14th Dist.), who helped push the bill through the House, has said that Markell is expected to sign.   

The bill had been introduced every year for the past decade without success.  Five of those bills had passed the House but stalled in Senate committees.  We reported on an earlier version of the bill, which passed the House in March but died in the Senate Executive Committee.  A full version of the bill is linked below.