In fiscal year 2009, the U.S. Equal Employment Opportunity Commission received over 90,000 new private sector charges of discrimination for the second straight year, the agency reported.

Although total charges actually fell 2.2 percent in fiscal year 2009–to 93,277 from a total of 95,402 charges in fiscal year 2008–comparable levels had not been previously recorded for more than a decade.

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

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

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

In addition, the latest charge statistics show that retaliation charges now represent the largest category–with 33,613 retaliation charges surpassing race discrimination charges for fiscal year 2009.

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

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

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

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

“Most notably, we embarked on an ambitious hiring program,” he said, noting that 155 net new hires were added last year to fill more than 200 added positions for investigators, trial attorneys, support staff, paralegals and expert statisticians, as well as labor economists to support systemic enforcement and litigation programs.

“That is just a start. We anticipate continued additional hiring in FY 2010,” he said in a message introducing the PAR report, also highlighting a training effort–”the largest the agency has conducted in at least a decade”–intended to equip employees with essential skills and knowledge for investigating and litigating cases involving systemic discrimination.

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

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

Mr. Ishimaru also reported “unprecedented results” for the EEOC's enforcement program, noting that $294.2 million in monetary benefits was recovered for victims of discrimination through administrative enforcement and mediation in 2009, representing an all-time record. Adding recoveries from litigation, he said the resulting total–$376 million–was the second-highest level ever.

The chair also highlighted expanded enforcement responsibilities taken on by the EEOC. Among other duties, the agency began to enforce and issue proposed regulations under the Americans with Disabilities Act Amendments Act of 2008. The amendments, which became effective in January 2009, expanded protections against disability discrimination by expanding the scope of coverage under the ADA.

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

The EEOC published the new rule in the Federal Register on Feb. 18, explaining that the rule was put out in response to a 2005 U.S. Supreme Court decision, Smith v. City of Jackson. In Smith, the court held that an employment practice that has disparate impact on older workers is discriminatory 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 one that is objectively reasonable when viewed from the position of a reasonable employer under like circumstances, going on to list six factors that may be relevant to a reasonableness determination. These include the commonality of a business practice and whether the factor is related to the employer's stated business goal.

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

Special Reports /

Discrimination Charges Fell Slightly In 2009, But Remain Near Record Levels

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