Back in the 1990s, employers still had the Anita Hill-Clarence Thomas hearings and the tawdry sexual harassment allegations relatively fresh on their minds. Employment lawyers will tell you that they started to see a bump up in claims in the early to mid 1990s as the issues of workplace harassment raised to the surface.

I raised it in one of my posts 10 years ago this very week.

But even before yesterday’s news that major movie mogul Harvey Weinstein has been accused of sexual harassment of many women over many years, I’d been thinking that we’re seeing another wave.

For employers, this new era should be even more concerning.

Why?

Because back in the 1980s and early 1990s, employers could at least say that “well, we didn’t know we needed to train” or “well, we didn’t know we needed to do an investigation.”  It may not have been plausible (or even good business), but at least it was something.

Now with laws in many states mandating sexual harassment prevention training and with U.S. Supreme Court precedent nearly mandating that employers investigate harassment claims and take prompt remedial action, there’s just no excuse.

And yet, over the last 12-24 months, we’ve seen a series of very high-profile people be brought down over sex harassment cases.

The implications for this are huge — and not for the reasons you may think.

It’ll take a while for statistics to back this up, but my educated guess is that settlements of sex harassment claims, and employee verdicts of sex harassment claims are up and going to continue going up.

As a result, employers are likely to pay more for settlements in the short term to avoid headlines of the type we are seeing. And juries are more likely to punish employers that they think should know better.

The practical implications of this for employers are several, but I’ll highlight three, some of which I’ve said before.

  1. It is absolutely imperative for employers to investigate sex harassment claims. But more than that, employers must take steps to ensure that the harassment STOPS.  Paying off one case, only to have the harasser move on to the next victim just is a recipe for disaster.
  2. When a lawsuit does arise, make sure you are fairly evaluating the case. Even if you think you have a defense, there may be more value to settling the case early on than fighting it and losing big.  Not every case is a home run, but not every case is an outright winner for the employer either.
  3. Train. Train. Train.  And when you’re done training, encourage people to bring issues to your attention.  Sweeping claims under the rug will only hurt the employer in the long run.

A new era of sex harassment claims is upon us.  Employers that allow any such harassment to go on risks headlines AND big payouts.  It’s a place employers should strive really hard to avoid.

numbersThis week, the Yankee Institute for Public Policy, a self-described “free market” think tank, issued an article suggesting that Connecticut had nearly the same number of discrimination complaints as our neighboring state, Massachusetts.

(This isn’t the first time it’s been critical of the CHRO.)

In doing so, the Yankee Institute claimed that these statistics raise “questions as to whether Connecticut is simply more litigious or if the policies at the Commission on Human Rights and Opportunities are encouraging more claims.”

The basis for its analysis is a raw look at the statistics of claims filed — something I covered way back in December 2016 in two posts here and here.

I noted back then that the statistics only told part of the story and unfortunately here, the Yankee Institute’s arguments fall into this trap of relying too heavily on just a few statistics.

For example, yes, discrimination complaints have risen in the last few years as the Yankee Institute argues, but the types of complaints being filed are changing.  The Yankee Institute’s article lumps them all together as if they are fungible.

For example, as I noted in December: If you look at the claims involving termination of employment, there were 1216 filed in FY 2016, which is actually down from historical peaks in 2003, when there were 1385 such claims.

Instead, a different type of claim is being filed over the last 15 years — with huge increases in the “terms and conditions” area.

That is, employees who claim that they are being discriminated against in the “terms and conditions” of their employment when it comes to things like hiring, promotions and pay.  It could also mean an employer is not approving leaves, or granting breaks or any other term or condition of employment, however small.

In 2003, there were 411 such claims filed.  In 2014, there were 782.  By FY 2016, however, that number has skyrocketed to 1056!

In my mind, that likely means that more current employees are bringing discrimination claims against their employers.

chro99This is bolstered by a look at the “harassment” statistics. Notably, I’m not talking about sexual harassment claims, which continue to trend noticeably downward.  Just 135 such claims were filed in FY 2016, down from 185 the prior year and the lowest number by far in the 15+ years of available data.

Instead, this is a catch all claim for “I’m harassed” because of some other reason.  Just 175 such claims were filed in 2003, though that number was up to 380 in 2014.  For FY 2016, that number is up to 545.

That’s a more than 210% increase in over a decade!

Is the CHRO to blame for this trend? Without more critical analysis, I am hesitant to place the blame on the Connecticut Commission on Human Rights and Opportunities.

Anecdotally, I hear more arguments that employees are throwing around the phrase “hostile work environment” — not understanding that having a difficult boss is not illegal harassment.

The Yankee Institute’s article is also critical of the CHRO’s closure rate for “No Reasonable Cause” at 54 percent, compared to 87 percent of the Massachusetts claims closed for a lack of probable cause.

The CHRO issued a statement of their own on Facebook this week, with its own explanation for the discrepancy:

Many companies in Connecticut choose to resolve those matters prior to going through the full investigation process, by mediating those claims. Mediation works to the benefit of both parties, allowing for faster resolution and less time and money spent on investigations. These cases are frequently closed in fewer than six months from filing.

Here too, I think there is a danger than just looking at the numbers.  Both sides have some merit to their arguments.

As the Yankee Institute correctly notes, complaints ARE more costly and employers sometimes feel that they should pay something on even meritless claims to avoid the cost of litigation.

But the CHRO can also point to the fact that it has been dismissing more cases of late on Early Legal Intervention, giving employers more opportunities to avoid the cost of the CHRO process.  And the CHRO has been using mediation more effectively in the past — even if cases are getting through Case Assessment Review that probably shouldn’t.

Statistics are helpful; but when a state agency or a think tank starts using the numbers without providing context, reader beware.

zombieAs I did last year, after I posted on the general statistics of the CHRO to see if we could glean any trends, I took a deeper dive into what the statistics this year show.  And there were definitely a few surprises.

Obviously, at the risk of repeating yesterday’s post, FY 2015-2016 was a very big year for employment claims.

But because less employees are being fired or laid off (unemployment in Connecticut is at moderately low levels and the newest national figures this morning show just a 4.6 percent unemployment rate) than in a recession, what gives?

Well, if you look at the “discharge” claims — that is, the claim that “I was fired because of discrimination” — there was a modest increase in those claims to 1216 in FY 2016, up from 1174 in FY 2015.  But still, discharge claims are down from their historical peaks in 2003, when there were 1385 such claims.

But the bigger increase continues to be in the “terms and conditions” area.

That is, employees who claim that they are being discriminated against in the “terms and conditions” of their employment when it comes to things like hiring, promotions and pay.

It could also mean an employer is not approving leaves, or granting breaks or any other term or condition of employment, however small.

In 2003, there were 411 such claims filed.  In 2014, there were 782.  By FY 2016, however, that number has skyrocketed to 1056!  That’s a 35 percent increase in just the last two years.

In my mind, that likely means that more current employees are bringing discrimination claims against their employers.

This is bolstered by a look at the “harassment” statistics. Notably, I’m not talking about sexual harassment claims, which continue to trend noticeably downward.  Just 135 such claims were filed in FY 2016, down from 185 the prior year and the lowest number by far in the 15+ years of available data.  

Instead, this is a catch all claim for “I’m harassed” because of some other reason.  Just 175 such claims were filed in 2003, though that number was up to 380 in 2014.  For FY 2016, that number is up to 545.

That’s a more than 210% increase in over a decade!

Retaliation claims are also up again — an increase from 753 to 776. Though, it should be noted, that rise is a bit slower than the past few years.

What’s the takeaway?

As I noted last year, you may be looking for claims in the wrong spot.  Dismissal claims are up modestly but “harassment” and “terms and conditions” claims continue to see the biggest increases.

Thus, managing your current employees and getting legal counsel involved to help advise you, may be more helpful to keeping such claims to a minimum than just talking with counsel exclusively about terminations.

Regardless, employers should continue to be mindful that the trend of increased discrimination claims in Connecticut shows no signs of slowing down.

 

numbersAt this week’s CHRO information session, I was able to review the new statistics released by the CHRO this fall regarding case filings and dismissals.

They’ve now been posted live on the CHRO’s website here.

It’s something I’ve covered each year and I’m always fascinated by what these statistics show — and don’t show.

What’s the big takeaway this year?

The trend of increasing numbers of discrimination complaints being filed that we have seen in Connecticut since 2012 (when just 1838 complaints were filed) is showing no signs of abating.

Indeed, in the fiscal year ending June 30, 2016, 2616 complaints were filed, up from 2482 the year before.  Thus from FY 2012 to FY 2016, that’s a huge 42 percent increase in the number of claims filed.

Now, not all complaints with the CHRO are employment-related.

But as with prior years, that number has been going up as well.

For FY 2016, there were 2160 such complaints filed, up from 2017 last year, and up from 1559 four years ago.  Again, that’s a 39 percent increase in employment-related claims filed over the last four years!

I’ve noted this in prior years but these increases are head-scratchers.  Normally, in an improving economy, claims go down.  While the Connecticut economy hasn’t been growing a lot, it is still somewhat stable.  

Moreover, such increases are counter to the national trends which have seen the numbers of claims filed with the EEOC decrease from their peaks in 2010, 2011 and 2012.    (Though I should note that in FY 2015, the EEOC did see a slight increase — but the numbers are still down 10 percent from their peaks early this decade.)

I speculated at this week’s informational session that it could be that more claims are being filed because it’s easier than ever to pass the Case Assessment Review stage and try to get something at a mediation.  Those at the CHRO challenged that argument but no one at the meeting had a good idea of what could be causing the rise.

Regardless, employers who have been sensing that more complaints than ever are being filed aren’t far off the mark.

I’ll take a deeper dive into the statistics in tomorrow’s post.

chro2In yesterday’s post, I talked about how employment claims being filed are up big at the CHRO.

Indeed, in looking at the statistics further, I realized that it is the second highest number of claims being filed in the last 15 years.

So, FY 2015 was a very big year for claims.

But typically, in an improving economy, claims go down.  At least that’s the prevailing wisdom. So, what gives?

I wondered if the statistics could help explain the increase further?

In part, yes.

abacusIf you look at the “discharge” claims — that is, the claim that “I was fired because of discrimination” — those claims are basically the same (1174 for FY 2015 vs. 1164 in 2014.)

Compared with 2003 – the peak year for employment claims at 2211 — discharge claims are actually down substantially.  Indeed, in 2003, there were 1385 claims.  Thus, discharge claims are actually down 15 percent since 2003.

So, where are these claims coming from? One is from an obvious source: Retaliation claims.

In 2003, there were 516 claims filed. In 2014, 625. And in 2015, 753.  A 46 percent increase in the last decade or so and 20 percent over the last year alone.

Another is from a not so obvious source: from the “terms and conditions” area.  That is, employees who claim that they are being discriminated against in the “terms and conditions” of their employment when it comes to such things as hiring, firing, promotions, and pay. It also means an employer may not discriminate, for example, when granting breaks, approving leave, assigning work stations, or setting any other term or condition of employment – however small.

In 2003, there were 411 such claims filed. In 2014, 782. And in FY2015 —  a spike to 941.  That translates to a 130 percent increase in such claims over the last 12 years and 20 percent over the last year alone.

In my mind, that means that many current employees are bringing discrimination claims against their employers based on the terms and conditions of their employment.

One other source? Harassment claims.  Notably, I’m not talking about sexual harassment claims which are actually down from last year and down 24 percent from 2003.

Instead, this is the catch all claim for “I’m harassed” because of some other reason.  503 claims were filed in FY 2015 vs. 380 in 2014 and just 175 in 2003.  That’s an increase of nearly 190 percent in the last 12 years and 32 percent last year alone!

Again, these are typically brought by current employees who may be dissatistifed with things at work and believe that they are being “harassed” by their supervisor.

Indeed, the notion of “workplace bullying” movement is premised, at least in part, on this idea.

So, what’s the takeaway here? You may be looking for claims in the wrong spot. Dismissal claims are fairly constant, but it is claims by current employees that are up substantially over past years.

And while we’ve talked about the increase in retaliation claims for many years, but harassment and “terms & conditions” claims are now the hot areas — at least in Connecticut.

Is there anything else to be gleaned from the statistics? Any other reasons why we’re seeing an increase? Stay tuned for the next post.

The Commission on Human Rights and Opportunities released a new set of statistics yesterday (my thanks to CHRO liaison James O’Neill for the update which I had requested a while back).  Unlike years past, the statistics this year show some dramatic changes; those changes should have a significant impact on how employers view the agency and the state of affairs in Connecticut.

  • First, the number of claims filed (which includes employment law claims as well as other types of discrimination — including housing) with the agency rose 16 percent for the fiscal year ended June 30, 2014.  The claims rose from 1850 to 2146.  After years of modest decline, significantly more claims were filed in the last year.  What were the reasons for that increase? That remains to be seen.
  • To its’ credit, the CHRO continues to improve on its ratio of closed cases to open cases.  Last year the rate was 106%; it edged up slightly to 107%.  It closed 2303 cases (as compared with the 2146 cases it opened).  That means cases are less likely to linger at the agency.
  • But how those cases are being closed should be concerning to employers in some respects.  The agency dismissed just 97 cases on Merit Assessment Review (basically, the paper review after the parties submit their initial filings).  Compare that with over 800 cases closed on MAR review ten years ago.  That means a lot more cases are going to mediation and investigation and cases cost a lot more to defend than in past years.
  • And what else does that mean?  It means that more cases are also getting settled at the investigation stage.  935 cases were “withdrawn with a settlement” last year.  Compare that with just 481 over ten years ago.  For employers, even the cases that would be deemed as without merit years ago are getting some type of settlement now.  Again, an increase in costs for employers.

Unfortunately, the statistics don’t yet show how many cases were found to have “reasonable cause” to proceed to a public hearing, nor how many cases were the subject of early legal invention as well.

What’s interesting as well is that the increase is consistent with the increase in claims at the EEOC for claims filed in Connecticut as well.  Over the last five years, the number of EEOC claims in Connecticut has risen by 53 percent (from 191 charges to 294.)

I’ve previously covered the trends of such statistics in various posts for the last seven years, so it’s worth reviewing them (here, here and here for example) too to see the larger trends.

For employers who believed that the discrimination claims are a relic of history, the statistics show that such claims are alive and well.  And they are costing more in time and money than ten years ago.

 

Last week, a story caught my eye and the attention of some of my colleagues.  As reported first by Bloomberg BNA, IBM has stopped providing the comparison information that is typically required in separation agreements for older workers under the Older Workers Benefit Protection Act.

You may be wondering how that is possible.  Robin Shea, of Employment & Labor Insider beat me to the punch with a very good recap that I don’t think I can improve upon.  So I’ll cite two paragraphs below:

As you know, when an employer has a “group termination” — usually, a reduction in force, but a “group” can be as few as two people – it is required to disclose the job titles and ages of the individuals in the “decisional unit,” which means the working unit from which the decisions were made. If the employer doesn’t make the disclosures (and get ‘em right), then it can’t get a valid waiver of age discrimination claims under the federal Age Discrimination in Employment Act although the waiver may be valid in other respects …..

But how can IBM do this?  They aren’t requiring employees to give up their age discrimination claims, that’s how. They’re just requiring them to use arbitration instead of the court system. Which I think is legal, based on Gilmer v. Interstate/Johnson Lane, a Supreme Court decision from the 1990′s.

In essence, IBM is using a separation agreement with two sets of rules: For all claims except age discrimination, employees must release IBM. For age discrimination claims, IBM has said that employees do not have to release IBM but must take any such claims to arbitration.

Will it work? That remains to be seen. It has yet to be challenged in court or the EEOC.

But most employers are not IBM and do not have the resources to take this strategy.

So I suspect that many employers will simply follow the path of least resistance and provide the comparison information under the OWBPA.  If done right, then employers will get the benefit of an additional release without the hassle of arbitration or the added cost.   It’s worked for many employers for over 20 years and, IBM’s strategy notwithstanding, it’s probably not worth changing gears now.

There are many good free resources for additional background on this topic. One that I would suggest was produced by the ABA in 2008 and is still highly relevant today.

Did he or didn’t he?

That’s what political pundits and others have been debating the last few weeks regarding presidential candidate Herman Cain.  But a more interesting question is whether claims of sexual harassment are on the rise or not.

Indeed, lost in the public discourse is a fact that isn’t talked about a lot: claims of sexual harassment (at least here in Connecticut) have been consistently trending down over the last few years.

In fact, claims in the last year that data is publicly available (FY 2009-2010) indicate that sex harassment claims filed at the CHRO were down over 30 percent, from FY2001-2002.  In raw numbers, claims are down from 239 claims filed to 162.

So the better question is why the drop?  I don’t know the answer to that question and I’m sure there are a number of factors involved.  But my educated guess is that the drop is due in part to better training and better responses by companies. Indeed, in Connecticut, the law and regulations requiring training is now a requisite part of human resources.

Does this mean that the era of sexual harassment claims are over? A column in Sunday’s New York Times suggests so. Or at least suggests that the current law is a bit outdated.

Codes of sexual harassment imagine an entirely symmetrical universe, where people are never outrageous, rude, awkward, excessive or confused, where sexual interest is always absent or reciprocated, in other words a universe that does not entirely resemble our own. We don’t legislate against meanness, or power struggles, or political maneuvering, or manipulation in offices, and how could we? So should we be legislating against rogue flirtations, the floating out of invitations? Obviously there is a line, which if the allegations against Mr. Cain are true, he has crossed, but there are many behaviors loosely included under the creative, capacious rubric of sexual harassment that do not cross that line.

I wouldn’t go that far.  We’ve seen enough headlines and cases to recognize that inappropriate behavior in the workplace still goes on — albeit in lower numbers than in the past — despite all the training and education that goes on.

So, perhaps the latest headlines merely reinforce the notion that claims of sexual harassment still carry some importance and claims against companies can quickly become today’s news.   They still need to be promptly and thoroughly investigated.

News flash: Record snows in Connecticut! 

Second news flash: Record numbers of people are out of work and filing complaints of discrimination at the EEOC nationwide!

Here’s the thing with both news flashes: They’re not entirely unexpected.  Sure, they’re in higher amounts than we’re accustomed to seeing, but both can be explained. (I’ll leave it to the weather forecasters to take the snow angle.) 

I’ve previously discussed trends in EEOC charges and I don’t see much in these new numbers that changes that trend.

  • Retaliation claims are up significantly and have now surpassed race discrimination as the most-filed type of complaint.   
  • Nearly 100,000 complaints were filed by people, but the EEOC filed 250 lawsuits, resolved 285 lawsuits, and resolved 104,999 private sector charges.  On other words, the EEOC has seen fit to pursue a lawsuit in just around .25 percent of the complaints filed.
  • The EEOC is continuing its investigations of systematic discrimination charges and currently has 465 pending nationwide.

Connecticut hasn’t really seen this same spike as exists nationally.  Indeed, the latest CHRO Times shows that while the CHRO remains active, it is far from the peak levels that occurred a few years back.

As I reported back in September, claims of discrimination were fairly constant from last year’s levels.

 

 

The conventional wisdom in a down economy is that employment discrimination claims will skyrocket. While there have been some indications of that at a national level, the numbers in Connecticut tell a very different story.

The state agency in Connecticut responsible for investigating discrimination complaints recently released its annual report (download here) for the fiscal year ending June 30, 2010. 

It shows that 1740 employment discrimination complaints were filed in the 2009-2010 fiscal year, up slightly from 1716 complaints the year before (a little over 1 percent). However, these numbers are still well below the 1814 complaints filed in FY2008, and the over 2000 complaints in FY 2001. 

(I’ve previously looked at the annual report numbers in posts here, here and here.) 

Notably, the numbers of "reasonable cause" findings are down 15 percent from the year prior — to just 75 instances during the whole year (down from 91 in FY2009). It is the first time in 4 years, that the numbers of reasonable cause findings were this low. 

In upcoming posts I’ll delve into the numbers a bit further including increasing numbers of retaliation complaints being filed.

The numbers confirm what I had suspected last year — a discrimination complaint is not a foregone conclusion from a layoff, at least not in Connecticut.

Photo credit: Grafixar from morguefile.com