workplace discriminationIn a previous blog post, we reviewed the top three most common types of employment discrimination charges filed in the United States in 2020 with the Equal Employment Opportunity Commission (EEOC). These charges were related to retaliation, disability, and race. What we have observed from studying these issues is that, despite the fact that the 1964 Civil Rights Act outlaws many forms of employment discrimination, these kinds of alleged incidents are still being widely reported in workplaces throughout the United States.

In this post, we conclude our look into employment discrimination by examining the fourth, fifth, and sixth most-reported charges in FY 2020, as published by the EEOC: charges of sex (gender), age, and national origin discrimination in employment.

We will then discuss how Welch Consulting can work with your firm to collect and organize data that is useful to understand potential claims of discrimination, address problem areas proactively, and help you defend against discrimination cases brought by government agencies or private sector litigation.

4. Sex (Gender) Discrimination

How is sex discrimination visible in the workplace?

According to EEOC’s FY 2020 list, based on the previous year’s data through September 30, 2020, sex-based discrimination was the fourth most common complaint area, with 21,398 reported charges, or 31.7% of the total 70,804 charges. Discrimination on the basis of sex or sexual orientation is prohibited under Title VII of the Civil Rights Act of 1964.

Cases of sex (gender) discrimination often arise from a suspicion that employment decisions involving hiring, compensation, benefits, terminations, and even general interactions may be influenced by decision-makers’ adverse motives and actions towards one sex. Unlike retaliation claims, which tend to be specific to individual actions by managers or supervisors, sex discrimination complaints are frequently related to a company’s policies and practices, and often involve large groups of employees. In these situations, defending class-wide claims of sex discrimination may require analysis of large and complex data sources.

A related allegation leading to claims of sex discrimination is workplace behavior – this can involve other employees or supervisors making sexual advances toward a person, asking for sexual favors, or otherwise causing harm or discomfort with unwanted sexual remarks. Again, federal law prohibits this kind of behavior in the workplace (and also prohibits retaliating against a coworker for complaining about it). Failure of a company’s HR department to provide education and training of employees and management about appropriate policies and practices for dealing with complaints of this kind—as well as failure to follow up/address such complaints when they arise—can lead to Agency charges (such as those arising from EEOC or OFCCP audits), as well as private litigation.

5. Age Discrimination

What is “ageism,” and how can these charges be defended against?

Age discrimination, also called “ageism,” was outlawed in 1967 with the passage of the Age Discrimination in Employment Act, which bans discrimination against employees aged 40 or older. Despite this mandate, FY 2020 saw 14,183 cases of alleged workplace ageism reported to the EEOC, making ageism the fifth most common discrimination charge involving the EEOC, with 21.0% of charges filed.

Ageism can be a difficult charge to defend: Whereas an employee’s age is relatively obvious, the reason for selection of a younger worker for promotion or relative pay advancement, for example, may be entirely based on age-neutral qualities and performance of the selected (younger) employee. When a company’s policies and practices are alleged to reflect age bias, it is essential that the company responds with evidence showing outcomes are age-neutral, and offering a proper understanding of the reasons for selection.

Defending a charge of age discrimination in employment actions can be time-consuming, and requires statistical expertise in almost all large cases. However,  the task can be made much less onerous with preparation, especially in knowing in advance which data systems contain reliable, electronic data that can be accessed directly. As in other discrimination claims—such as those based on perceived race or gender bias—providing age-neutral explanations for outcomes adversely affecting older workers may also require coding of paper records, such as résumés, interview forms, memos, and other business documents not regularly kept in organized, electronic formats. These documents can provide critical statistical data that may be used to defend against age discrimination charges, especially when combined with more accessible business records such as payroll and human resource source records.

6. National Origin Discrimination

What does discrimination based on “national origin” entail?

Based on the EEOC’s FY 2020 list of charges, discrimination based on the national origin of employees constituted the sixth most common discrimination charge, with 6,377 charges filed, or 9.5% of all charges. The Civil Rights Act of 1964 bans discrimination against an employee because of national origin; this means that employment cannot be denied to an applicant, nor can an employee be subjected to unfair treatment after hire, based in any way on that person’s birthplace, ancestry, culture, or spoken accent. National origin discrimination also includes unfair treatment based on an employee’s association with people or groups belonging to a certain country or culture. For instance, a person’s membership in a certain church or mosque, or marriage to someone from a specific country, cannot be the basis for any adverse employment decision.

From a data standpoint, charges of national origin discrimination can be difficult to defend, because employee characteristics relevant to an employee’s national origin are unlikely to be maintained in a company’s data bases. There will generally be a lack of recorded data to support a defense in charges alleging discrimination based on the personal characteristics of a Claimant (such as religious affiliation), or on the national origin of persons with whom the Claimant may associate. Even an action as straightforward as identifying all employees who share the “same” national origin characteristics—such as spoken language—may prove impossible based on existing source data maintained within the company.

In cases where national origin charges are filed company-wide, therefore, the primary need for data analysis is likely to be collection and coding, which can require individual-level testimony, and which may be time-consuming and appear invasive to employees. In these situations, the standard advice – to proactively and carefully analyze company data in preparation for potential discrimination charges – may be impractical or ineffective. When a charge is actually filed, however, meticulous collection of non-electronically available information may be necessary. As with all discrimination claims, HR departments are on the front lines of ensuring national origin complaints are investigated and dealt with appropriately before agency claims are filed.

Welch’s Labor Economists and Data Analysts Can Help

Workplace discrimination charges can be difficult for companies to anticipate and overwhelming to handle, particularly when litigation or investigations commence unexpectedly. Collecting the appropriate data can sometimes seem a daunting task, and companies may not even know where to begin. That’s where Welch Consulting’s labor economists come in. We can assist in collecting relevant data to investigate your firm’s employment outcomes, clearly report the data to you, and help you to understand how to address any potential trouble spots that these proactive analyses reveal. After data sources are organized and any shortfalls are proactively addressed, your company will be in a strong position to defend against Agency investigations, such as those the EEOC or OFCCP initiate, as well as private litigation discrimination claims.

Contact us today to learn more about our industry-leading labor consulting skills. Welch’s economic consultants have extensive experience in litigation, having served as economic expert witnesses in numerous discrimination lawsuits brought by employees. We are the vanguard in economic and big data analytics consulting. See for yourself the difference we can make.

 

SOURCES:
Insurance Journal
EEOC Releases Fiscal Year Enforcement and Litigation Data  https://www.eeoc.gov/newsroom/eeoc-releases-fiscal-year-2020-enforcement-and-litigation-data
Insurance Business America
Paychex