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By CYRIL TUOHY, managing editor of Risk & Insurance®

From retaliation claims to discrimination claims to huge class-action lawsuits, employer-employee relations finished 2010 in a dismal state of affairs, judging by the latest data on workplace legal actions and grievance.

"We are getting a number of employers who had never had a complaint filed against them," said Tiffany Miller, a law associate with Fisher & Phillips, a Chicago-based law firm that represents employers in labor and employment cases.

The weak economy as the reason for the increase can't be overstated, Miller said, as complaints last year deluged corporate human resources departments, even with the most politically correct of companies previously free of blemishes.

"They've never had it, and suddenly in a down economy, people struggling to find employment, and that triggers a change," Miller said.

Complaints alleging civil rights discrimination, pay, age and race discrimination all increased in fiscal year 2010, according to the U.S. Equal Employment Opportunity Commission.

The number of retaliation charges in fiscal year 2010 jumped to 36,258 cases, up from 33,613 in the previous fiscal year, the EEOC reported. The number of charges alleging discrimination in the categories of civil rights, age, disability and equal pay increased as well. For the first time, the number of claims alleging retaliation surpassed the number of race discrimination claims, the EEOC also reported.

Are employers discriminating more than they used to? Not likely, Miller said.

Savvy plaintiffs know that retaliation claims are easier to prove than discrimination claims, and as companies prepare for layoffs, workers sometimes can turn around and claim the layoff was in retaliation for a prior complaint.

"For people who say I have a record of complaints, if I'm getting let go, the door is open for them to argue its retaliatory," said Jim Nealon, a partner with the firm of Kelley, Drye & Warren.

AN ABSOLUTE SHIELD?

For employers and their risk managers, there's no "absolute shield" that will protect them from "cagey and sophisticated" employees, nor from the outright "malcontent," Nealon said, not even the latest employment practices liability coverage.

But when word gets around that management has a "process of integrity" and follows its own policies to the letter, then employees thinking of filing a discrimination complaint will find it "hard to throw something up and have it stick," Nealon also said.

"Document, document, document," Miller said. She said that risk managers looking to make sure their company presents a watertight case should review their in-house corporate employee handbooks and their employment practices liability coverage.

Keeping employee reviews up to date and getting back to workers who bring issues to the attention of their bosses will also help the company if and when it comes time to prepare for dispute.

Despite the increase in retaliation claims, EEOC officials said, there was some good news in that the commission saw slowed growth in the number of complaints. The number of pending charges in fiscal year 2010 inched up by less than 1 percent over fiscal year 2009, after jumping 15.9 percent over the 2008 fiscal year.

"We are pleased to see that our rebuilding efforts are having an impact on how efficiently and effectively the commission enforces the civil rights laws protecting the nation's workers," said EEOC Chairwoman Jacqueline A. Berrien, in a statement on the EEOC website.

The commission's mediation program also ended the fiscal year with a record 9,370 resolutions, up 10 percent from the previous fiscal year.

January 24, 2011

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