In fiscal year 2009, the U.S. Equal Employment OpportunityCommission received over 90,000 new private sector charges ofdiscrimination for the second straight year, the agencyreported.

Although total charges actually fell 2.2 percent in fiscal year2009–to 93,277 from a total of 95,402 charges in fiscal year2008–comparable levels had not been previously recorded for morethan a decade.

According to historical charge data available on the EEOC Website, charges reached a level of 91,189 in fiscal year 1994, but inmore recent years charge levels hovered in the 75,000-to-80,000range.

The charge information for the year ended Sept. 30, 2009 wasfirst published last November in the EEOC's Fiscal Year 2009Performance and Accountability Report (http://www.eeoc.gov/eeoc/plan/2009par.cfm)–areport that also provided details of an ambitious hiring program atthe agency and an update on enforcements efforts.

While that report did not provide a breakdown of charges by typeof discrimination, the EEOC disclosed these details in earlyJanuary, revealing record-high numbers for job-bias charges thatinvolved disability, religion and national origin discriminationallegations. (See related chart for a summary by discriminationtype for the last two years.)

In addition, the latest charge statistics show that retaliationcharges now represent the largest category–with 33,613 retaliationcharges surpassing race discrimination charges for fiscal year2009.

While disability charges grew 10.3 percent, representing thesteepest climb among the four categories on the rise, age chargesshowed the biggest drop among the categories with lower chargelevels than 2008, falling 7.4 percent to 22,775.

For employment practices liability insurance professionals whotrack EEOC charge statistics, this year's decline in overall chargenumbers may be viewed as a small break in an upward trend thatstarted in fiscal year 2007, when the agency reported a 9 percentjump over the level of charges for fiscal-year 2006–the largestincrease that had been reported since fiscal year 1993. A yearlater, the 2008 total of 95,402 charges represented another 15percent jump over 2007.

The agency's discussion of enforcement activity and beefed-upbudget, however, may mitigate any inclination to read positivetrends for insurers into the figures.

In the PAR report, Stuart Ishimaru, acting chair of thecommission, reported that the EEOC's budgetary allocation of $343.9million allowed the agency to “begin the difficult process ofrebuilding after eight years of inadequate funding.”

“Most notably, we embarked on an ambitious hiring program,” hesaid, noting that 155 net new hires were added last year to fillmore than 200 added positions for investigators, trial attorneys,support staff, paralegals and expert statisticians, as well aslabor economists to support systemic enforcement and litigationprograms.

“That is just a start. We anticipate continued additional hiringin FY 2010,” he said in a message introducing the PAR report, alsohighlighting a training effort–”the largest the agency hasconducted in at least a decade”–intended to equip employees withessential skills and knowledge for investigating and litigatingcases involving systemic discrimination.

One measure of the early success of the systemic initiative isthe fact that the EEOC filed 111 lawsuits on behalf of classes ofindividuals in fiscal year 2009, Mr. Ishimaru said. The systematicinitiative–launched in 2006 and reported in the April 17, 2006edition of NU (http://bit.ly/9T7zNh)–shifted theagency's focus from small individual cases to larger systematicissues.

(The EEOC defines “systemic cases” as “pattern or practice,policy and class cases where the alleged discrimination has broadimpact on an industry, profession, company or geographiclocation.”)

Mr. Ishimaru also reported “unprecedented results” for theEEOC's enforcement program, noting that $294.2 million in monetarybenefits was recovered for victims of discrimination throughadministrative enforcement and mediation in 2009, representing anall-time record. Adding recoveries from litigation, he said theresulting total–$376 million–was the second-highest level ever.

The chair also highlighted expanded enforcement responsibilitiestaken on by the EEOC. Among other duties, the agency began toenforce and issue proposed regulations under the Americans withDisabilities Act Amendments Act of 2008. The amendments, whichbecame effective in January 2009, expanded protections againstdisability discrimination by expanding the scope of coverage underthe ADA.

Separately, the EEOC issued new guidance related to agediscrimination claims last month. The proposed rule defines“reasonable factors other than age,” or RFOA–a defense thatemployers can use against claims brought against them for allegedviolations of the Age Discrimination Act of 1967.

The EEOC published the new rule in the Federal Registeron Feb. 18, explaining that the rule was put out in response to a2005 U.S. Supreme Court decision, Smith v. City ofJackson. In Smith, the court held that an employmentpractice that has disparate impact on older workers isdiscriminatory unless that practice is justified by an RFOA,without defining the meaning of the term “reasonable.”

The proposed rule explains that a “reasonable” factor is onethat is objectively reasonable when viewed from the position of areasonable employer under like circumstances, going on to list sixfactors that may be relevant to a reasonableness determination.These include the commonality of a business practice and whetherthe factor is related to the employer's stated business goal.

A summary of key provisions of the rule and a link to the ruleare available at http://www.eeoc.gov/laws/regulations/qanda_resonable_factors.cfm.There is a 60-day comment period.