Good News, Bad News in EEOC Charges from New Jersey

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The agency that has responsibility to investigate and correct discrimination and harassment in the workplace reports a decline in most complaint categories from New Jersey.

The U.S. Equal Employment Opportunity Commission (EEOC) reports that 1,611 charges were received in 2017 from New Jersey, a decrease from the 1,890 charges logged the previous year.

But a substantial increase in retaliation charges suggests that employers are having difficulty in addressing internal complaints.

The EEOC is responsible for enforcing federal laws that make it unlawful to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.

Employees file complaints, called charges, with the agency, who assigns a case officer to investigate and, if possible, settle the matter before it goes to court.  

It is also unlawful to retaliate against a person because the person complained about discrimination or harassment, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

In the era of #Me Too, it may be surprising that charges at the agency decreased in nearly every category, including sex-based harassment, given that a national online conducted in January reported that 81 percent of women and 43 percent of men said they had experienced sexual harassment or assault over their lifetimes — higher than most other studies and polls have suggested.

But one important charge category went up – retaliation. And that may mean that employers are mishandling how internal complaints are addressed.

John Sarno, president of the Employers Association of New Jersey, thinks the decrease in sex harassment charges makes sense given that employers are more aware of the problem and are quick to correct it.

“In the past, some employers thought it would be best not to pay much attention to a women’s complaint in the hope that it might stop or that she might just quit the job. But its clear that that type of inaction could create legal problems.”

And the drop in overall charges may reflect that employers are being proactive, he says, remediating complaints internally before they get filed at the EEOC.

But the increase in retaliation charges suggests that there may be problems in how employers are handling internal complaints.
Retaliation charges represented nearly 43 percent of all charges filed in 2017, a five percent increase over 2016, and a ten percent increase from 2009.

Sarno says that retaliation charges are mostly filed after an employee is transferred, demoted or even discharged after filing an internal complaint of discrimination or harassment.

“The typical situation is that an employee says he or she has been harassed, the company investigates but either there are no witnesses, or for some other reason, doesn’t take much action.   This is followed by something bad happening to the employee that complained” Sarno explains.

The “something bad” is called “adverse employment action” and can be any tangible negative consequence, including disciplining the employee that made the complaint.

Sometimes even shunning the employee after the complaint has been made, or later after it has been resolved, can constitute adverse action.

And the scenario can play out even if the company does a full investigation, including witness interviews, and the harasser is promptly disciplined, suspended or fired.  

It’s about avoiding the perception that the employee making the complaint is being punished for coming forward, says Sarno.

Since perception is reality in most cases, he advises employers to always take some action after every investigation, even if the findings are ambiguous or unfounded.  

“Additional training or a reaffirmation of the employer’s anti-harassment policy may be sufficient. You don’t have to make it a federal case” he says.

On the other hand, should the complaining employee receive an adverse action for any reason, the reason should be carefully documented.

For example, it is not uncommon for the employee who alleged harassment to later be subject to discipline for legitimate reasons; say, for lateness, excessive absenteeism or poor job performance.  

“Under the circumstances, there’s no substitute for careful documentation. Its basic post-complaint monitoring that someone should be doing. If the complaining employee gets transferred or demoted, somebody needs to verify the reason. Where is the documentation?”