. . . The EEOC received record numbers of charges alleging discrimination based on origin (11,134 charges), religion (3,386 charges) and sex-based discrimination (28,028 charges.) However retaliation discrimination (33,613 charges) and race discrimination (33,579 charges) reached an all time high for this year. The EEOC also reported that through its enforcement, mediation and litigation programs, the agency recovered monetary relief for discrimination victims totaling over $376 million. The total number was 93,277, just slightly off the 2008 record numbers of 95,402, making the two-year annual average for 2008 and 2009 a staggering figure of 94,340 charges filed.
The goal of everyone should be to resolve employee issues amicably so as to AVOID litigation if at all possible. Therefore, one thing employers can do when making broad employment decisions, is to conduct a statistical assessment to determine whether any disproportionate impact is occurring against members of any protected class employees. If so, the employer should cautiously analyze its decisions to ensure they are supported by legitimate business reasons.
If an employee later makes a retaliation / discrimination claim anyway, then the eventual workplace investigator should conduct a basic statistical assessment, if a sufficient number of true comparators exists, to determine if there is a disparate impact on any protected classes. And again, if a disparate impact is found, the investigator should determine if the basis for the employer’s actions are supported by legitimate non-discriminatory, non-retaliatory business reasons.
It should be noted, that the scope of disparate impact liability under the federal Age Discrimination in Employment Act is narrower than that under Title VII (race, color, religion, sex, or national origin). Under a Title VII claim, an employer must show that, although the policy or practice at issue may have had a disparate impact on a protected class of employees, the policy or practice was consistent with business necessity and there was no other way for the employer to achieve its goals. However, in 2005, the U.S. Supreme Court (in Smith v. City of Jackson, Mississippi) held that in defending an age discrimination claim under the ADEA, an employer need show only that its practice or policy was based on reasonable factors other than age. This is a significantly lesser standard than required under Title VII.
A workplace investigator should be able to conduct a basis statistical assessment assuming there is a sufficient number of true comparators. The investigator should also be aware of differing standards of disparate impact liability under the different statutes and what an employer needs to establish under the standards of liability. I am not saying that the investigator should go into a discussion of the law in his/her written report. What I am saying is that the investigator should have these standards in mind while conducting his/her analysis of the facts. These "disparate impact" issues can then be analyzed by the investigator to help determine whether or not an employer has violated its own written policies prohibiting discrimination.