Earlier this month, the Equal Employment Opportunity Commission released final statistics on charges of discrimination filed during the most recent fiscal year. The total charges rose slightly over 2014, but remained well below the record levels experienced following the economic crisis in 2009. The breakdown of charges by protected classifications remained steady, with a slight uptick in the relative percentage of disability discrimination claims.
The number of charges that contain a retaliation claim continued its long-term increase in 2015, rising almost two percentage points to over 45 percent of all charges filed. In contrast, in FY 2005, the number of charging parties alleging retaliation was under 30 percent. Assuming that most employers that receive complaints of discrimination are aware of their obligations against retaliation, and assuming that many are represented by competent legal counsel, why do an ever-increasing number of charge filers claim that they were retaliated against?
Part of this increase may relate to EEOC intake investigators asking more questions about possible retaliation, and perhaps encouraging filers to include a retaliation claim as part of their charges. Given that almost half of all EEOC charges filed nationwide now include a retaliation component, employers’ explanation and enforcement of anti-retaliation policies is more important than ever. In addition, any adverse action taken against an employee who has made an internal or external claim of workplace discrimination must be thoroughly planned, documented and vetted to make certain it is based on legitimate business reasons, and is consistent with treatment of similar situations in the past.