Retaliation discrimination

Every year, companies spend tens of thousands (or even millions) of dollars addressing workplace discrimination claims – and paying out damages if they lose those cases in court. To keep our clients (and whoever else may be interested in learning more about this topic) informed, Welch Consulting has compiled a list of the most common categories of employment discrimination and related claims among the 67,448 charges of workplace discrimination reported to the Equal Employment Opportunity Commission (EEOC) in 2020. Welch Consulting is a national leader in analyzing labor and employment discrimination claims; our economic consultants have years of experience defending companies against major employment discrimination charges throughout the United States.

In this article, we examine the three largest claim areas, and in a future article, will discuss the fourth through sixth most recently-published tabulations of discriminatory complaints arising in the now-completed FY 2020.

1. Workplace Retaliation

According to data from FY 2020, the most common type of workplace discrimination charges were retaliation claims, with 37,632 instances nationwide, making up 55.8% of all charges.  This is a slight increase compared with FY 2019, (with 53.8% of all claims).

What is Workplace Retaliation?

Retaliation claims are allegations that a supervisor or fellow employee took negative actions leading to a demotion, firing, docked wages (among other claims) against an individual who previously complained about harassment or discrimination. It is against federal law for an employer, or anyone acting for an employer, to retaliate against an employee for complaining about unfair treatment that he or she believes arose from discrimination in the workplace, whether that complaint is related to an employee’s race, gender, age, national origin, or any other characteristic protected under the law. Employer actions that come soon after an employee’s original complaint, especially actions that appear punitive or adversely impact the employee’s career, may result in a future retaliation complaint.

Most of the time, these claims tend to be against immediate supervisors or others in charge of enforcing internal employment policies, which means that retaliation claims tend to be individual in nature (rather than class action claims). Employers must be cautious when deciding to alter an employee’s career path, particularly if the employee has previously reported that they have been the victim of workplace discrimination. It is critically important that the company investigate these types of claims and document non-discriminatory reasons, and supporting evidence, for any negative employment decisions that may seem to have resulted from alleged discrimination.

At the same time, appropriate steps consistent with company policies should be taken to address workplace retaliation if the evidence suggests that discriminatory behavior is the true reason for adverse action against the employee.

2. Disability -Based Discrimination

The EEOC lists disability-based discrimination as the second-most reported type of employment discrimination, at more than 24,324 reported cases, or 36.1%, based on its counts from FY 2020.  This also represents a slight increase from 2019 (33.4%). The Americans with Disabilities Act of 1990 outlaws discriminating against people with disabilities in any aspect of public life, including in the workplace.

What is meant by “disability-based discrimination”? 

Simply put, an employer is not allowed to mistreat an employee or an applicant because they have any disability. Similar to sexual discrimination in the workplace, disability discrimination can involve allegations related to hiring, termination, compensation, benefits, and any other area of employment.

Employers are required to provide “reasonable accommodation” for employees with disabilities to allow them to perform their jobs to the same standard as employees without disabilities. For instance, an employer must provide braille materials to blind employees if this is the only accommodation needed for a blind employee to succeed. Failure to provide these accommodations might also result in a claim of disability discrimination.

It is important to note that employers must comply only with reasonable requests which would not cause an undue financial burden on the company. For instance, it is not a reasonable request for an employee with a disability to ask an employer to eliminate basic job functions from a particular role when the absence of those functions would adversely affect a company’s performance to accommodate them.

3. Race Discrimination

Didn’t this used to be the most common claim received by EEOC?

Yes. Surprisingly to many, according to the EEOC’s FY 2020 data, race-based claims are only the third most-common type of claimed discrimination in the workplace today—involving 22,064 charges, or 32.7%, slightly down from 2019 (33%).  In the early days of EEOC activity, virtually every claim filed involved allegations of race discrimination.

Racial discrimination allegations occur when an employee believes that they are being treated unfairly, in any way, based on their race. Race discrimination charges are often brought based on company-wide events—for example, hiring, promotion, termination, or any other employment area—wherein a disparity based on race seems to appear. However, these allegations are not always directed company wide; they can also be made at the individual or group level. These can include claims that a supervisor promotes only white employees, or even that a hiring manager requires employees to be of a minimum height to fill a position, knowing that members of a certain race or other group are unlikely to be that tall (and that height is not essential to performing the necessary tasks of that role).

Racial discrimination may also be alleged as unfair treatment related to wages, benefits, hours, and other areas of employment. In company-wide claims, a defense might rely on using collected and analyzed data to prove that differences that appear to be based on race are in fact explained by race-neutral characteristics and individual skills of employees.

The Civil Rights Act of 1964 prohibits workplace discrimination based on race. In instances wherein a company does not know how to account for differences in employment outcomes by group, it’s best if analysis of company data is undertaken proactively–not only to preemptively ensure that any observed negative employment outcomes can be explained by race-neutral factors, but also to have the data available in advance, to explain such differences if a charge is filed.

Experts in Labor Economics

Workplace discrimination charges can be difficult for companies to anticipate and data demands can seem overwhelming, particularly when litigation or investigations begin unexpectedly. While collecting the appropriate data in advance can seem like a daunting task, and companies may not even know where to begin, Welch Consulting’s labor economists can help. We focus data collection on relevant data and assist in investigating your firm’s employment outcomes. We clearly report the data to you, and help you to understand how to address any potential trouble spots that proactive analyses reveal. After data sources are organized, and any shortcomings are appropriately addressed, your company will be in a stronger position to defend against EEOC/OFFCP investigations or private litigation discrimination claims.

Contact us today for industry-leading labor consulting. Welch’s economists have extensive experience in litigation, having served as expert witnesses in numerous employee discrimination lawsuits. We are the vanguard in economic and labor data analysis; see for yourself the difference we can make.



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