BFV Perspectives, Sports Fans Guide 2 HR, | Nov 23, 2014

Discrimination by the Numbers

Numbers mean a lot in the world of sports.  They are placed on jerseys to identify players, used to measure performance, define careers, and determine a player’s entry into a hall of fame.  Some numbers hold special significance, because they are associated with great personal achievements, such as 56 (Joe DiMaggio’s 56-game hitting streak), 2,632 (the number of consecutive games played by Cal Ripkin, Jr.), 4,256 (the number of hits by Pete Rose) 17 (Grand Slam tennis titles by Roger Federer), 7 (the number of NCAA consecutive basketball titles by UCLA) and 6 (the number of Rocky films).

We also pay particular attention to statistics (the analysis of numbers) that are associated with championship performances.   For example, much was made of this year’s World Series MVP, Madison Bumgarner, whose World Series statistics are an amazing 4-0 with a save and a 0.25 ERA, along with three championship rings. In 36 innings, he has allowed just one run and 14 hits, striking out 31 and walking five.

Because the sports industry has evolved into a massive business, an understanding of statistics has become essential to teams trying to build championship caliber rosters while faced with salary constraints.

The Importance of Numbers in Business

As in sports, understanding statistics in business is critical to a company’s success. Data on sales, production, expenditures, and inventories are a small sampling of the business statistics that allow businesses to plan operations, establish standards and measure financial stability and performance.

From a human resources perspective, understanding national statistics about discrimination charges and claims can help identify areas to concentrate compliance efforts.   Each year, the U.S. Equal Employment Opportunity Commission (“EEOC”) issues comprehensive reports analyzing the number and types of charges that are filed with the agency and the amount of monetary relief it recovered through mediation, conciliation and litigation.   The EEOC’s most recent FY 2014 Performance Report showed a rather significant drop in the number of charges that were filed with the agency as well as the amount of monetary recoveries.   The EEOC’s fiscal year ends September 30.

What the Numbers Show

In a press release issued November 11, 2014, the EEOC stated that it received 88,778 private sector charges in FY 2014, a decrease of about 5,000 charges from FY 2013.  A total of 87,442 charges were resolved, which is 9,810 fewer than in FY 2013.

The amount of monetary recoveries from administrative enforcement and litigation fell from $39 million to $22.5 million.  In FY 2014, the EEOC’s national mediation program secured 7,846 mediated resolutions out of 10,221 conducted.  The agency obtained $144.6 million in benefits for individuals through mediations.

The EEOC attributed the decline in these numbers to a number of factors, but namely the government shutdown and the effects of sequestration.   An improving economy and job market may also have played a major factor in the reduction of charge filings.  It is generally accepted that individuals who have trouble finding new employment in a poor economy and tough labor market are more likely to file charges with the EEOC and need to support themselves.  In better economic times, however, individuals tend to find new jobs faster and are, therefore, less desperate for some relief. As a result, fewer charges are filed.

What to Anticipate in FY 2015

Although the number of charge filings has continued to decline since 2011, employers should not interpret this as a sign that the EEOC will be less visible or active as an enforcement agency.  To the contrary, the recent report will likely motivate the EEOC to be more aggressive in its investigation and enforcement efforts.

Jenny R. Yang, EEOC Chair, expressed the Agency’s commitment to maintaining its strategic enforcement goals in the recent press release as follows:

“Despite these hurdles, the employees of the EEOC remain committed to meeting the needs, addressing the challenges, and seizing upon the opportunities of the 21st century workforce. . . . Increased hiring achieved at the end of FY 2014 and investments in technology should enable us to more effectively investigate charges in a timely fashion, while also improving the quality of our intake and investigations.”

Going forward, the EEOC will likely continue to pursue systemic cases of discrimination. Systemic cases are those that address policies or patterns or practices that have a broad impact on a region, industry or entire class of employees or job applicants.

According to the EEOC, in FY 2014 the agency completed 260 systemic investigations, resulting in 78 settlements and conciliation agreements securing approximately $13 million in monetary relief.  Systemic lawsuits comprised 13 percent of all merits suit filings, and by the end of the year, represented 25 percent of all active merits suits. This is the largest proportion of systemic suits on EEOC’s active docket since tracking began in FY 2006.  Here are just three examples of systemic resolutions obtained by the EEOC in FY 2014:

  • A systemic investigation of a major restaurant chain resulted in a cause finding that the restaurant failed to hire front of the house staff on the basis of sex (female), and national origin (Hispanic).  Through conciliation a settlement was reached that provided $1 million to class members, training to all human resource and management staff, and the employer agreed to engage in recruitment of female and Hispanics.
  • The EEOC found that a company employing drivers had a practice of not hiring women for driving positions because of their sex.  The matter was resolved through conciliation. The company agreed to pay $530,000 in monetary relief and, among other things, adopted an effective EEO policy prohibiting gender discrimination.
  • A company agreed to pay $650,000 for aggrieved persons after the EEOC found that the company’s background screening policies were discriminatory on the basis of race (black), national origin (Hispanic), and sex (male).

Significance to Employers

Given the likelihood that the recent charge statistics will motivate the EEOC to aggressively investigate charges as well as the EEOC’s expressed commitment to pursue systemic cases, employers should pay particular attention to employment practices that can lead to class-type claims. These include hiring practices (such as the use of criminal background checks, asking about criminal history in job applications, and credit checks); leave policies (especially policies that have fixed leave policies); providing a healthy work environment to protect against harassment claims; and workforce reductions.

BFV Perspectives, Sports Fans Guide 2 HR, | Nov 23, 2014
Kenneth N. Winkler
Kenneth N. Winkler

Kenneth Winklera shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.