2016 EEOC Stats

 

As a lawyer who frequently deals with EEOC charges/responses the EEOC’s yearly statistics always provide some interesting information on what folks are filing claims over these days.  Here is a link to a state by state breakdown of claims in 2016.  So what were some key Texas numbers?  Here are a few:

  1. 9,308 Total Claims
  2. 3,244 Race Based Claims
  3. 2,765 Sex Discrimination Claims
  4. 1,190 National Origin Claims
  5. 358 Religion Based Claims
  6. 4,633 Retaliation Claims (Based On All Statutes)
  7. 2,000 Age Claims
  8. 2,775 Disability Claims
  9. 90 Equal Pay Act Claims
  10. 24 GINA Claims

Texas was down by about 200 claims from 2015 but 9,308 is still a lot of claims for the EEOC to address.  Why does that matter?  Because employers who face a claim want the the claim resolved in a timely manner.  If you have had any recent experience with EEOC claims in Texas you know that resolution of the claims takes some time.  Why?  In part because there are a lot of other claims ahead of you.  The EEOC is limited in terms of the number offices and investigators it has to resolve claims.  As long as Texas continues to see close to 9,000 claims a year it will be a long process.

 

 

 

 

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We’ve talked here multiple times about the EEOC charge process and how a employers should handle the process.  Employers have to keep their eye on the ultimate goal – an EEOC Form 161 Right to Sue letter.  Of course the EEOC will ask the employer for a position statement and certain documents, but what if the EEOC requests a site inspection?  Can it do so?  Yes it can.  So what can the employer and its lawyer do to prepare?

  1. Define the Scope of the Site Inspection – What does the EEOC Investigator want?  This needs to be agreed to before the investigator arrives for the interview.
  2. Document Review – They may want to review employee files, employee manuals, policies etc.  See #1.  Agree what is going to be provided, review it, and have it ready for inspection.
  3. Employee Interviews – Yes, the EEOC can interview employees.  If they are management employees an attorney or company representative is entitled to sit in the interview.  If they are non-management, the EEOC (at least according to it) is entitled to interview them without a lawyer or representative.  (That should scare anyone.)  See #1.  Agree on who is going to be interviewed and who is management versus non-management.  Obviously, the less individuals that are interviewed the better.  See if you can work with the EEOC to make sure you are providing someone that can actually provide responsive information.  This could limit the number of folks they interview.
  4. Preparation – Management – Treat the interviews like depositions.  Prepare the witness thoroughly on expected topics, how to answer questions, how to be responsive. If there are certain key documents review them with the witness.   In the interview where counsel is present, help facilitate the interview if need be.
  5. Preparation – Non-Management – Who knows what an employee is going to say to the EEOC?  Maybe they have an axe to grind?  Hopefully not.  The witness needs to know what they can expect and what the process is about.  But assume anything you share with them will be relayed to the EEOC.  Better to be safe than sorry.
  6. What can they ask?  Quesitons should be limited to the scope of the charge.  Of course there is some wiggle room there, but the charge should provide guidance.
  7. Be Nice – The idea is to make the site inspection a one time event.  Reasonably accommodate the investigator in terms of his or he requests.  It should be approached as a collaborative process, but never forget the power the EEOC has.
  8. Debrief – Debrief any witnesses that are interviewed.  Since you won’t be present for non-management folks you need to know what was said.
  9. Follow up in writing. – Confirm in writing to the EEOC that it was provided with everything requested.
  10. Disruption – Take steps to minimize business disruption.  Not everyone needs to know about what the inspection.  If a conference room is available that is not in the middle of everything, use it.

These are just a few thoughts on the site inspection.  Remember the ultimate goal is to obtain the Dismissal and Notice of Rights.  Finally, make sure all of the employer’s required notices are up to date and posted.

Equal-Employment-Opportunity-Commission

It’s always interesting to see how the media covers employment cases.  Five members of the US Women’s soccer team filed a charge with EEOC against th US Soccer Federation asserting claims related to disparate pay as compared to men.  This follows a lawsuit filed last month by US Soccer against the US women’s soccer union over its efforts to seek better bargaining terms.  The NY Times provided a very detailed analysis of the alleged disparity between the US men’s team and the US women’s team.

The more interesting thing to me from an employer/employee perspective is the EEOC process.  A plaintiff, or in this case plaintiffs, first has to file his/her charge with EEOC before they can proceed with their lawsuit assuming they are asserting claims that relate to statutes the EEOC enforces.  The EEOC will then request a response from the party accused of the violation.  The party usually provides a written statement, documents, and even affidavits to support their position.  There may be some back and forth as the investigation continues and the EEOC offers a mediation process as well.  The EEOC can also interview employees and request review of additional documents such as employee files.  The caveat on employees interviews is the EEOC maintains it can interview non-management employees outside the presence of an attorney.  This should make any lawyer or business owner nervous.  The employer is permitted to sit in on management interviews.  The EEOC may also conduct a site visit.

Ultimately, and this can take a long time, the EEOC will make a finding as to whether a violation has occurred.  Regardless of the finding, the EEOC will provide the complaining party with a right to sue letter.  They then have 90 days to file a lawsuit.  In limited instances the EEOC can actually represent the complaining party in the lawsuit.  In most cases it is up for the employee to find an attorney.  Depending on the case, the employee’s attorney may be representing the employee through the EEOC charge process.

Anecdotally, the complaint process seems to be lasting longer.  That of course is based on my recent dealings with the EEOC.  Generally, an employee/employee’s lawyer that does not want to run through the complaint process can request a right to sue letter after the complaint has been pending for 180 days.  The employee then has 90 days to file suit.  We’ll see how quickly the EEOC gets to US Women’s complaint.  My guess is with the media attention it will be faster than normal.  We’ll keep you posted.

 

Filing a charge of discrimination with the EEOC is not difficult for a motivated former employee.  A lawyer is not necessary and there is enough instruction from the EEOC and the world wide web to give someone pretty detailed guidance on what to do.  Once the complaint is filed the EEOC (or similar state agency) will request a response from the employer which means time, costs, and even attorneys’ fees.  The EEOC’s 2015 numbers show a rise in complaints by 5% to around 89,000 charges.  The details are here.  Here is how the charges break down:

  • Retaliation: 39,757 (44.5% of all charges filed)
  • Race: 31,027 (34.7%)
  • Disability: 26,968 (30.2%)
  • Sex: 26,396 (29.5%)
  • Age: 20,144 (22.5%)
  • National Origin: 9,438 (10.6%)
  • Religion: 3,502 (3.9%)
  • Color: 2,833 (3.2%)
  • Equal Pay Act: 973 (1.1%)
  • Genetic Information Non-Discrimination Act: 257 (0.3%)

 

 

                                                   

As we discussed a few weeks ago, the number of EEOC charges against Texas employers are on the rise.  The reality is a former employee can file a charge without a lawyer and with relatively little effort.  So the question becomes, once the employer receives the charge, how should they respond? 

Generally, the EEOC will request information related to the claims asserted by the charging party.  In Texas, the EEOC has essentially subcontracted out some of this work to the Texas Workforce Commission.  No matter what agency is leading the investigation, I always encourage clients to be responsive, provide a full explanation, and avoid any further requests from the EEOC or TWC for additional information.  Usually, requests may include witness statements, a response to the actual charge, evidence of other instances similar to the one alleged, and basic factual information. 

In many cases, the EEOC claim will have been preceded by an unemployment proceeding with the TWC.  Always review those filings, both by the employer and the charging party to make sure responses and allegations are consistent from case to case .  There always tend to be some admission by the employee in a TWC proceeding that could potentially bear on the EEOC proceeding.

During the EEOC proceeding, the parties will also have the opportunity to mediate the dispute.  Obviously, resolving cases is good and avoiding attorneys’ fees is better.  An EEOC mediation does not cost anything and if you have a case that you think should or could be resolved, mediation might be worth a shot.   Some employers consider a request for a mediation a weakness, I disagree. Mediation provides both the lawyer and the employer an opportunity to size up what type of witness the former employee is actually going to be and provides for essentially some free discovery on a potential lawsuit. 

The majority of charges examined by the EEOC result in a dismissal and a right to sue letter.  Then the question becomes whether the employee will actually proceed with a lawsuit?  If the employee is represented by a lawyer during the EEOC process, odds are the employer is more likely to see a lawsuit. 

Employers, can of  course represent themselves through the EEOC or TWC proceedings.  Of course, as a lawyer, I recommend that they retain counsel to handle these matters.  Though there are many employers who have been through the process on numerous occasions and are more than qualified to deal with it themselves.  That is going to be a case by case, employer by employer determination.

Take the EEOC charge seriously, remember that whatever the employer files could potentially come back as evidence during a lawsuit.  Make sure that your positions are consistent between unemployment proceedings and the EEOC proceeding.

 

                                              

 The EEOC recently made the breakdown of its individual charge filings available online for each state.  The statistics run from fiscal year 2009 through fiscal year 2011.  The top Texas discrimination charges are: (1) retaliation (41%);  (2) race (36.3%); (3) retaliation – Title VII (35.9%); and (4) sex discrimination (29.4%).

Total charges in Texas continue to rise as across the nation.  Employers need to anticipate and be ready for the EEOC charge, whether there is merit to it or not.  All it takes is a former employee to fill out the necessary paperwork and file it with the EEOC.  No lawyer is required and there is no charge for the filing.  From the employee’s standpoint, what does it hurt? Maybe they can get the employer to pony up some money to resolve the dispute, even if it is baseless.

 

The above is a fuzzy map of the city limits of Dallas with zip codes – you get the point. The recently enacted Dallas Paid Sick Time Ordinance applies to the areas in green.  Here is our previous discussion on the details of the ordinance.  In a nutshell, employees who work work at least 80 hours a week in the geographic boundaries of Dallas are entitled to paid sick leave

Today, I took a look at the City of Dallas “Frequently Asked Questions” regarding the Dallas Paid Sick Time ordinance.  Here some of the more obscure/interesting items that caught my attention:

  • Employee has to be working in the geographical boundaries of the City of Dallas;
  • Number of employees is determined by those that have done at least 80 hours of compensable work within the City of Dallas in the last 12 months – if the number of employees has varied use the highest number – part time employees are considered one employee;
  • Enforcement of provision (except retaliation) with employers that have six or more employees begins April 1, 2020 – 5 or more August 1, 2021;
  • There is a fairly lengthy discussion about how to properly front-load hours (employee has immediate access to sick time as opposed to accruing the hours over time);
  • Employers must provide employees a monthly statement about the balance of their paid sick time hours;
  • Records related to use of sick time hours must be maintained for 3 years;
  • Employees must provide notice of FORESEEABLE sick time notices;
  • Employees must be paid for sick time on the pay period for which the sick time was used;
  • A terminated employee is not entitled to payment for unused sick leave;
  • The ordinance will be enforced by the Office of Fair Housing and Human rights (no details as of yet); and
  • A complaint can be filed on a complaint form but does not have to be.

From my perspective the enforcement details will be very interesting and raise a lot of questions.  What type of investigation process will the Office of Fair Housing employ?  Will it be similar to an EEOC investigation where the is a complaint filed by a response?  What type of appeal process will there be of the Office of Fair Housing’s initial determination?  The devil is always in the details.  We’ll keep you posted on any developments.

 

 

Over the past few months we’ve been tracking the interplay between various Texas cities (San Antonio – Dallas – Austin) and the Texas legislature.  The aforementioned city councils adopted in similar form and fashion mandatory leave policies for employees within city limits.  The Dallas version provides for the following:

  • In effect August 1, 2019 for employers with 15 or more employees and August 1, 2021 for smaller businesses;
  • All for-profit and non-profit businesses required to provide paid sick-leave;
  • An employee is entitled to one hour of leave for every 30 hours worked; and
  • The number of hours that can be accrued is limited to 64 hours for employers that employ more than 15 employees and 48 hours for those with fewer than 15.

Mayors and legislators told us the ordinances would never happen because Texas state legislation would prevent the ordinances – or so they said.  Guess what?  The Texas legislature did not make it happen.  Come August we have mandatory leave in Dallas proper.

Other cities in the U.S. have passed similar ordinances and in some instances gone above and beyond.  For instance, the City of Minneapolis has a passed a quasi-FMLA ordinance with retaliation provisions.  A city agency can actually award damages with limited judicial review.  Think of it as arming the EEOC with the power to award damages – from an employer perspective that his scary.  The question becomes whether Texas cities will continue to expand these type of pro-employee provisions. We’ll see and keep you posted.

 

In  Texas, cities are attempting to enact legislation that mandates paid time off/sick leave.  In February, the City of Austin passed a paid-time-off ordinance.  It does not go into effect until October.  In the meantime lawsuits have been filed to stop the ordinance and there are efforts in the Texas legislature to prevent such ordinances.  Today, I read in the Dallas Morning News that the City of DeSoto has become the first North Texas city to enact paid family leave.  The point is the trend towards this type of legislation is on the upswing.  Depending on your views, more progressive or liberal towns, cities, and counties are pushing this type of ordinance.  Conservative groups or legislatures will then attack the ordinance. Continue Reading Watch Out for City/County Employment Laws

 

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From an employer’s perspective the firing of an employee is hopefully the culmination of a deliberative process and compliance with the company’s policies and procedures.  It is the ultimate adverse employment action and everything that is said and done may be put under the microscope by an employee’s lawyer, EEOC, or Texas Commission on Human Rights.  So what should the employer be thinking about before someone from HR sits down with the employee:

  1. Has the company complied with all policies and procedures with respect to the termination?  This could range from required warnings, write-ups, performance improvement plans etc.
  2. Have you considered what claims the employee may assert against the company?  Has the risk been evaluated with respect to those potential claims?
  3. If the company suspects potential litigation how does the employment file look?  We all know that Texas is an at-will state (the employer may fire for no reason at all as long as there is no discriminatory basis) but some basis may need to be articulated?
  4. Are there any post-employment covenants (non-competes/non-solicits/anti-raid provisions) that the employee needs to be reminded of or may need to be enforced in the future?
  5. Are there other contractual obligations the company may have to the employee?  Usually this is compensation related like stock options/retention bonuses etc.
  6. Is the company going to articulate a basis for the firing to the employee?  Best practice here is to actually walk through the mechanics of the let-go and dialogue with the employee.
  7. Pay the employee everything they are owed. Enough said there.
  8. Last day logistics – cut off access to email and company documents, orchestrate the return of all company property, and conduct any necessary exit interviews.  If it is going to be an ugly departure prepare accordingly.
  9. Is the company offering severance?  Is the company going to let the employee continue to work for the company while they look for new employment or provide notice on when the termination will take place?  What day of the week will the termination take place?
  10. Will the company require a release in exchange for severance?

These are just a few items to consider.