Discrimination Charges Filed With The Equal Employment Opportunity Commission Hit Record High in Fiscal Year 2010
The Equal Employment Opportunity Commission (“EEOC”) recently reported that the number of charges filed under the discrimination statutes that it is charged with enforcing during its fiscal year 2010 reached the highest level in its history with 99,922 charges of discrimination being filed. The EEOC enforces Title VII of the Civil Rights Act of 1964, as amended (Title VII), the Equal Pay Act of 1963, as amended (EPA), the Age Discrimination Employment Act of 1967, as amended (ADEA), the Americans With Disabilities Act of 1992, as amended (ADA), and the Genetic Information Non-Discrimination Act of 2008 (GINA).
Retaliation Charges
In addition to the record number of charges filed during FY-2010−for the first time in the EEOC’s history−the percentage of retaliation charges constitutes the single highest category of charges filed under the statutes enforced by the EEOC which is not surprising. Over the past decade, the number of retaliation charges filed with the EEOC had been increasing and many professionals knew this day would come. The increase in retaliation charges is largely attributable to the fact that an employer can be found liable for retaliating against an employee even though the employer did not commit unlawful discrimination in violation of a particular statute. In simple terms, a claim of retaliation basically is a claim by an employee or a former employee that she exercised a protected right and was punished for it. For example, an employee who complains of sexual harassment is expressing a protected right. If she complains and as a result is fired, her firing would constitute retaliation unless the employer had a legitimate nondiscriminatory reason for firing her which, by the way, would have to be proved by the employer. It does not matter whether the employee’s claim of sexual harassment is valid. What matters is the employer’s response to the claim when an employee raises it.
Retaliating Against Co-Workers – Think Again
On January 24, 2011 the United States Supreme Court (unanimously) issued its decision in the Eric Thompson v. North American Stainless L.P. case.[1] Thompson brought a retaliation claim under Title VII based upon an adverse action taken against him when his fiancée filed a sex discrimination charge against her employer. In short, Thompson prevailed on his claim in district court, lost on appeal and was vindicated by the Supreme Court. The Supreme Court ruled in favor of Thompson and remanded the case to the United States Court of Appeals for the Sixth Circuit, instructing it to issue an opinion consistent with the Supreme Court’s ruling that Thompson:
“falls within the zone of interests protected by Title VII. Thompson was an employee of [North American Steel], and the purpose of Title VII is to protect employees from their employers’ unlawful actions. … Thompson [was] not an accidental victim of the retaliation—collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of hurting Regalado. Hurting him was the unlawful act by which [North American Steel] punished her.”
Covered Employers
Most of the statutes mentioned in this article have a threshold requirement that an employer employ a certain number of employees in order to be covered under the federal antidiscrimination statutes. With the exception of the ADEA and GINA, generally speaking, an employer must employ 15 or more employees to be a covered employer. Note, however, an employer doing business in Lee County is covered under the Lee County Equal Opportunity Ordinance (“Ordinance”), which applies to employers employing 5 or more employees in Lee County. The Ordinance is Lee County’s version of the antidiscrimination statutes under federal law and its protections are interpreted in a manner that is consistent with federal antidiscrimination laws.
Employers who have closely related family members working for them should take note of the decision in Thompson and take proactive steps to insure that supervisors are not retaliating against closely related co-workers of employees who exercise their protected rights in an effort to discourage the complaining employee from pursuing his or her claim.
A note to the reader: This article is intended to provide general information and is not intended to be a substitute for competent legal advice. Competent legal counsel should be consulted if you have questions regarding compliance with the law.
Questions regarding the content of this column or past columns or suggestions for future columns may be e-mailed to Christina Harris Schwinn at christinaschwinn@paveselaw.com. To view past columns written by Ms. Schwinn please visit the firm’s website at www.paveselaw.com. Ms. Schwinn is a partner and an experienced employment and real estate attorney with the Pavese Law Firm, 1833 Hendry Street, Fort Myers, FL 33901; Telephone: (239) 336-6228; Telecopier: (239) 332-2243.
[1] Eric L. Thompson v. North American Stainless, L.P., 22 Fla. L. Weekly Fed. S772a. January 24, 2011).