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The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. 

Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other.  In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin.  For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years. 

Interestingly, the total Monetary Benefits recovered through voluntary resolution of claims was over $350 million for the complainants of workplace discrimination.  This was the 7^th highest total recovery on record over the previous 25 years.  This number was somewhat surprising because the agency only resolved about 62,000 total cases in 2021.  Again, for reference, in 2013, the agency collected record Monetary Benefits of $372 million, but that was for the resolution of over 97,000 claims.

What does this mean for employers?  It’s fairly simple.  While the total number of claims has been decreasing, the total cost of claims is steeply rising. 

What is the cause of the increase of cost of claims?  Again, it seems fairly simple.  Retaliation remains the most common type of charge filed with the EEOC.  Retaliation claims account for over 56% of the total charges filed, and are ordinarily the most expensive claims for employers. 

Why are retaliation charges problematic?  As we have cautioned employers, retaliation claims are problematic because they include claims of deliberate, targeted unlawful conduct in response to the claimant’s participation in a protected activity.  It is difficult to explain away or prove a legitimate business justification for targeted mistreatment of an employee who raised an internal complaint, gave a witness statement, or did something else to invoke the retaliation protection. 

What can employers do to minimize the risk?  To minimize the risk of retaliation claims employers can implement several baseline steps:

• Make sure you have an effective avenue for employees to report employment complaints, including any threats of retaliation. We recommend a third-party anonymous hotline.
• Once a complaint is received, begin the investigation immediately, fairly, and professionally.
• As part of the investigation, specifically remind everyone involved that retaliation is strictly prohibited!
• As part of your overall foundation, make sure all employees are trained and reminded that retaliation will not be tolerated and is grounds for immediate termination. This is accomplished through updated policies that are signed by employees and regular training.
• Train employees on civility and respect in the workplace. These training events by third-party professionals have shown added benefits at minimizing not only the underlying bad acts, but also at preventing subsequent retaliation. 

With a proper foundation of workplace preventative measures, employers can minimize their risk of EEOC charges and high-leverage claims.  For further information, please reach out to Jeffrey C. Miller, jcmiller@bmdllc.com, or any member of the BMD L+E team.