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.

Rainbow over Hartford
Are Things Getting Better or Worse?

The last few weeks it seems that I’ve been reading about sexual harassment in the workplace issues a lot more. Here are a few examples:

So what’s going on? Is sex harassment increasing? Or is this just another round of increased focused placed on a problem that still persists?

Well, if you look at the statistics, you can see part of the story — and part of the problem trying to glean trends from the numbers too.

Last year, I reported on some statistics from the state level about harassment claims.  Indeed, sex harassment cases were down significantly, but general “I’ve been harassed” claims were up nearly 200% over the last decade or so.

The EEOC statistics show slightly different numbers. Sex harassment claims went up by a modest 4 percent in fiscal year 2015, though more generalized “harassment” under Title VII claims also increased by 6 percent.

So, which is it? Up or down? Statistics on case filing don’t tell the full story.  Surveys (yes, including the one in Cosmopolitan magazine) show that women still think some workplaces have issues.

But I would argue that chasing statistics is missing the point. Rather, it’s the perception of whether this is a hot issue that will drive the discussion.  And to that, we’re definitely seeing renewed interest. For example, a few weeks ago, the EEOC issued some findings and statements from a select task force calling on stakeholders “to double down and ‘reboot’ workplace harassment prevention efforts“.  This increased focus on the area will once again bring the issues of sexual harassment to the forefront.

What’s an employer to do? Well, start with the obvious.  Review your existing policies. Are they strong enough? Do they need to be updated to reflect current practices?  And then review your existing training.  Is it updated? Or is it still stuck in the 1990s?   And then look at how your workplace is actually functioning.

Beyond that the EEOC has a whole list of suggestions for employers to follow. You can view the entire compilation, but here are a few examples:

  • Employers should foster an organizational culture in which harassment is not tolerated, and in which respect and civility are promoted. Employers should communicate and model a consistent commitment to that goal.
  • Employers should assess their workplaces for the risk factors associated with harassment and explore ideas for minimizing those risks.
  • Employers should conduct climate surveys to assess the extent to which harassment is a problem in their organization.
  • Employers should devote sufficient resources to harassment prevention efforts, both to ensure that such efforts are effective, and to reinforce the credibility of leadership’s commitment to creating a workplace free of harassment.
  • Employers should ensure that where harassment is found to have occurred, discipline is prompt and proportionate to the severity of the infraction. In addition, employers should ensure that where harassment is found to have occurred, discipline is consistent, and does not give (or create the appearance of) undue favor to any particular employee.
  • Employers should hold mid-level managers and front-line supervisors accountable for preventing and/or responding to workplace harassment, including through the use of metrics and performance reviews.
  • If employers have a diversity and inclusion strategy and budget, harassment prevention should be an integral part of that strategy.

HR personnel have a lot on their plate now; be sure harassment prevention remains there as well.

Today, cross-posted on the LXBN site, I reflected on the biggest legal developments of the first half of the decade.  I am reposting it here, but my sincere thanks to Lexblog for the support it has given me over the past 8 1/2 years and for the opportunity to provide some insight on its site.

yearsWhen I was asked by LexBlog to provide insight into my most significant story I’ve written about in the first half of this decade (and wondering if it started on January 1, 2010 or 2011?), I first thought about looking at some statistics of pages visited on my blog.

Turns out that my most read story was….a blurb on what the IRS reimbursement rate for business travel was in 2010. (Followed by stories on the rates for 2015, 2011 and 2012.).

So, let’s just say that blogging statistics can be a bit deceiving. Though, one other statistic really stands out: There’s been a huge rise in viewing the blog on both social media and on mobile phones.

And that, I think leads me what I think is the big overall story of the 2010s: The rise of social media in employment law.

This is, of course, not new. Back in 2012, I indicated that the biggest story then was the rise of social media.

That has only been amplified in the following years.

For the first few years of the 2010s, it seemed that every other presentation I did was on social media. First, it was to educate employers on what social media was. But then beyond that, was the second layer — how was social media impacting the workforce.  In 2012, I helped plan WESFACCA’s “Day of Social Media” to help educate in-house lawyers on the perils of social media.

My discussions ranged from the now seemingly quaint “Facebook firing” case of November 2010 to the September 2013 case where a Facebook “like” was deemed a protected activity to the new 2015 Connecticut law restricting employer access to personal social media accounts.

But I do think the tide is turning a bit.  Social media has become so mainstream that it is now just part of the myriad of things human resources has to keep track of.  People are less shocked by a Facebook post and employees have become smarter about their use of privacy settings too.

Sure, people still say stupid things on social media and they are still getting fired for it (appropriately, in some instances) but employers are now able to keep some perspective about the whole thing too.

So, in five years (and heaven help all of us if I’m still writing this blog in five years), I think it’s unlikely to still be dominating posts like it did for the first half.

What will take it’s place? My wager is on data privacy.  Yes, it’s a bit self-serving of me to predict this in light of the presentation we did this month on this very topic.  But judging by the interest we’ve been getting in the subject, I think we’re on to something.

Employee data is just one aspect of this.  Rather, employers who store information on a computer are subject to attempts at hacking and theft on a daily basis.  Plus, employees who transmit information may do so without encrypting the information — leaving the data open to prying eyes.

I don’t know where it all will lead, but I will say that if you aren’t doing everything you can to ensure the safety of the data on your networks, you probably aren’t doing enough.

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.

 

Regan MacBain Traub, CPC, SPHR

Today brings another installment of an occasional feature of “Five Questions”, in which we ask five questions of a noteworthy person in the employment law and human resources areas.  I’m pleased that Regan MacBain Traub, CPC, SPHR, founder and managing principal of The Human Resource Consortium, was able to take some time to respond to some questions.

Regan has extensive experience in dealing with complex strategy, change management, staffing and retention issues.  She has served as Connecticut State Director for the Society of Human Resource Management and a Member of the Executive Board for the Human Resource Association of Central Connecticut.

As you can see from the interview, she’s got a wealth of expertise and I thank Regan for sharing her thoughts and her time.  Let us know what you think about these issues in the comments section below.  If you know of others who you’d like to see interviewed,  feel free to comment as well.

1) Are companies starting to hire again? In other words, do things seem to be picking up?

We are seeing a number of positive business climate indicators on the HR front at this time. Organizations are beginning to invest in enhancing their human resource management infrastructure and practices again.

Since, unfortunately, many companies still see HR (particularly when it’s transaction-mired) as a cost center rather than revenue generator (when it’s achieved a more consistent strategic and consultative level), this definitely is a positive sign. We also are hearing more firms talking about, and taking action on, hiring again. We’re also seeing some investments in training initiatives. However, I still hear CFOs questioning the ROI they’ve received from significant expense in training in the past so training budgets will probably lag a bit unless they can prove ROI or are regulatory-driven.

Continue Reading Five Questions with… Regan MacBain Traub, Founder, The Human Resource Consortium

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

With the local economy suffering the effects of the economic recession, the prevailing wisdom of experts has been that the number of discrimination claims filed would continue to skyrocket. However, as I’ve pointed out before, we just haven’t seen that trend in Connecticut play out.

New data just released by the Connecticut Commission on Human Rights and Opportunities (CHRO) confirms that the number of discrimination claims filed has actually dropped significantly over the last fiscal year (July 1, 2008-June 30, 2009). You can view the latest annual report here (and see my prior reports on the CHRO annual reports for FYs 2007 and 2008 both here and here). 

Thus in FY 2009, 1716 employment discrimination complaints were filed with the agency, compared with 1814 in the prior year.  Interestingly, the CHRO made almost the exact same number of "reasonable cause findings" — 91 — as it did in the prior year (88).  Over one-third of cases were dismissed on the merit assessment review stage and nearly another third were withdrawn with settlement. 

In an upcoming post or two, I’ll delve into the statistics a bit further (including big drops in the numbers of harassment and retaliation claims being filed). 

For employers, trying to figure out why the number of discrimination complaints here in the state is has dropped while the among of people unemployed is up, is a tough one to tackle.

Could it be that more employers are offering severance in exchange for waivers of discrimination complaints? Is it that people who are laid off during a recession understand the rationale (tough economic times) better than when times are good? Are employers seeking more legal advice about the process, anticipating a higher risk of a lawsuit?

Adding to the head-scratching is the fact that complaints to the EEOC on a nation-wide basis are actually up significantly.  In any case, the new statistics reveal that a discrimination claim is not a foregone conclusion arising from a layoff, at least in Connecticut.

Photo credit: Grafixar from morguefile.com

Last week, I publicized the release of federal court statistics; that story has now been picked up by the American Lawyer which crunches the numbers in more detail

But now you can break out your abacus again. The Connecticut Commission on Human Rights and Opportunities has also just released their annual repcourtesy morgue file "abacus"ort (available for download here) which contains all sorts of notable numbers, statistics and factoids. Over the next few days, we’ll slice and dice some of the numbers to see what trends can be glistened.  For some background, you can view my post analyzing last year’s numbers here. 

Here are some of the top-level observations:

  • Consistent with the trend at the EEOC this year, employment claims filed with the CHRO are up for the 2007-2008 fiscal year ending June 30, 2008.  Specifically, claims are up to 1814, from 1743 for the year ending June 30, 2007 – an increase of about 5 percent.  Not a huge jump, but still notable. However, claims are still way down compared with 5 years ago (when they topped out at 2211).
  • Retaliation claims are up substantially over the last year. Specifically, claims for 2007-2008 were 618, compared with 507 in 2006-2007 — an increase of over 20 percent.  Also notable, retaliation claims continue to make up a large percentage of the claims being filed.
  • "Harassment" and "Sexual Harassment" claims are also up substantially from last year’s numbers. For sexual harassment claims, this reverses a trend of decreased numbers that had existed for the last several years.

For employers, what is the immediate takeaway from these statistics? 

These statistics show that after years of decreases in the numbers of employment claims, those decreases have come to an end.  Being vigilant about human resources policies and procedures, and sensitive to the issues relating to various employment laws will be one way to reduce the risk that a claim filed will turn into a substantial issue down the road.

The CHRO has issued its Annual report ending for the fiscal year June 30, 2007, and made it available for public viewing. Its full of statistics that show trends in the workplace; such information is particularly useful for human resources personnel and in-house counsel. 

What does it show?

  • Employment claims are down nearly 20 percent from a peak in FY 2002/2003.  (1743 for FY ending 6/07 vs. 2211 ending 6/03). 
  • Notably, despite the theory that retaliation claims are being filed more frequently, that number is virtually identical (507 for 6/07 vs. 516 in 6/03).  However, because the overall employment claims are down, retaliation cases certainly appear to make up a greater percentage of the cases filed.  Perhaps that’s why many perceive retaliation cases to be on the "rise". 

A few other trends are worth noting as well.

  • Sexual harassment cases filed are down substantially by over 30 percent in the last 6 years.  In 2000, 271 cases were filed, while in 2006, just 188 cases were filed. 
  • General "harassment" cases, however, are up over 100 percent.  In 2002/03, 175 claims were filed, while in 2006/07, 428 complaints were filed. It is unclear whether this is due to a reclassification of the term "harassment" or whether the actual claims are up.
  • Claims for "terms and conditions" discrimination (in other words, something other than hiring/firing), are up over 10 percent (from 411 to 461, in the last 4 years). 
  • The numbers of decisions from the Public Hearing Officers is WAY down. In 2002/2003, they issued 67 decisions, compared with just 10 in 2006/2007.  (Most cases are now being resolved at this level by settlement.)
  • Yet the number of reasonable cause findings is remarkably consistent (88 in 2002/2003 compared with 92 in 2006/2007) — again making up a bigger percentage of overall cases filed. 

What does this mean? It means that discrimination cases in general are slowing down in recent years.  This can be attributed to multiple factors, including a steady economy and increasing education among employers. Given the other increase in wage and hour claims, it may be that some plaintiff’s attorneys are encouraging those claims (where the need to prove intent is not necessary, in some instances) rather than the traditional discrimination claims.

One cautionary note, at the EEOC, the overall number of claims filed INCREASED last year reversing a multi-year decrease on the national level.  Whether this reversal continues or is just a blip, remains to be seen.  Certainly, in Connecticut, we have not yet seen the decline in discrimination claims end just yet.