Employment Law Blog

Retaliation Cases Are Favored by the EEOC

A recent report from the Equal Employment Opportunity Commission (EEOC) reveals that retaliation cases are preferred by the agency.   The EEOC enforces the federal laws that make it illegal to discriminate or retaliate against a job applicant or employee. Retaliation Charges Lead the Way Another interesting aspect of the report was that the largest percentage of charges – 42.8 percent of the 88,778 total charges – were for retaliation.   Sex discrimination came in at 29.3 percent of charges, followed by disability discrimination at 28.6 percent, age discrimination at 23.2 percent, national origin at 10.8 percent, and religious discrimination at 4 percent. Color claims accounted for 3.1 percent of charges, the Equal Pay Act claims comprised 1.1 percent, and the Genetic Information Non-Discrimination Act allegations made up 0.4 percent. (The figures add up to more than 100 percent because some charges allege discrimination on multiple bases.)   This is the first year that retaliation charges were the most prevalent. The rising number of retaliation claims is concerning for employees.   We hear from a startling number of San Francisco employees who have suffered employment discrimination who are afraid to complain because they fear retaliation from their employers.  These fears persist despite many laws which specifically prohibit retaliation.   If you have questions about your employment rights or think you might be retaliated against please contact us. San Francisco and other Bay Area Employees Don’t Have It Any Better California’s Department of Fair Employment and Housing (DFEH) is a statewide administrative agency that enforces the Fair Employment and Housing Act (FEHA).   The FEHA, like its federal counterpart the EEOC, protects all San Francisco, Bay Area, and California employees from discrimination and harassment on the basis of age (40 and over), ancestry, color, religious creed (including religious dress and grooming practices), denial of family and medical leave, disability (mental and physical) including HIV and AIDS, gender, gender expression, gender identity, genetic information, marital status, medical condition (cancer and genetic characteristics), national origin, race, sex (including pregnancy, childbirth, breastfeeding, and medical conditions related to pregnancy, childbirth or breastfeeding) and sexual orientation. There were 18,480 charges filed with the DFEH in 2013 (the last year statistics are available for).  Like the EEOC, there were only a small number of lawsuits filed by the DFEH.  Of the 18,480 charges filed, only 40 lawsuits were filed by the DFEH.  As with the EEOC, for San Francisco and other Bay Area employees enforcement of the prohibitions against employment discrimination and harassment is ultimately left to the employee.  It is the goal of the Ottinger firm to help you with your efforts. Please contact us if you are a San Francisco or Bay Area employee who has suffered harassment or discrimination at work. The Statistics Reveal That The EEOC Does Not File Lawsuits to Enforce the Harassment and Discrimination Laws The most revealing statistic was the embarrassingly low number of lawsuits filed by the EEOC.  The EEOC’s enforcement duties include the duty to file lawsuits on behalf of employees.  However, of the 88,778 charges there were only 167 lawsuits filed.  That means your chances of the EEOC filing a lawsuit on your behalf is .0019%. Employees who have suffered harassment or discrimination and who are hoping to rely on the EEOC to vindicate their rights are in for a shock.  Instead, actual enforcement of the discrimination and harassment laws the EEOC is responsible for is left to the employee.  The employment attorneys at the Ottinger firm are available to help you in your efforts.  If you have suffered discrimination or harassment please contact us or submit a free case evaluation.

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Employment Law Blog

Retaliation at Work and How to Recognize it

Fear of retaliation at work prevents many employees from defending themselves against the abusive and illegal actions of their employers.   Many employees would rather put up with discrimination, a hostile work environment, or accept being misclassified as an independent contractor or salaried employee, than risk alienating an employer and possibly even losing their jobs by asserting their rights. A number of factors can make the decision to stand up to illegal employment practices a difficult one, but an employee should never be intimidated against taking action by the fear of retaliation at work. A series of federal, state and local laws exist to protect employees against any adverse action taken against them for engaging in a protected activity, such as filing a lawsuit or charge of discrimination with the EEOC, and the scope of this protection is broader than many realize. It may seem common sense that an employer cannot fire an employee for filing a lawsuit. But many are not aware that the legal protection of employees extends much further. In fact, any good faith complaint of unlawful employment practices, such as harassment, discrimination, failure to provide accommodations for a disability, or failure to provide overtime, is considered protected. This includes internal complaints made directly to an employer or the company’s HR department. Complaining to an external state or federal agency, such as the Department of Labor or the EEOC, is also conduct that is protected from retaliation at work. Retaliation at Work is Not Limited to Termination Perhaps more important than the definition of protected conduct is the definition of retaliation itself. Many employees simply don’t realize that any form of retaliation at work is illegal and actionable—it’s not necessary that an employee lose her job. As the Supreme Court has recently held, if an adverse action is severe enough that it would have “dissuaded a reasonable worker from making or supporting a charge of discrimination,??? that act is sufficient to support a retaliation claim. Pamela Wolf surveyed developments in case law on the issue, and she notes that the standard for retaliation at work is continuing to loosen. For instance, screaming and threats—even without any further adverse action—may be enough to constitute retaliation.  The simple temporal proximity of the adverse action to the protected conduct may be enough to get to trial, which is especially significant, as bad intent can often be very difficult to prove. Finally, the Supreme Court recently found that you can now bring a claim for retaliation even if you are not the person engaged in protected conduct, provided you are associated with that person. In that case, Thompson v. North Am. Stainless,a worker who was fired after his fiancé complained about sexual harassment had a claim for retaliation at work even though he made no complaint himself. Employees too often feel powerless to challenge hostile work environments, harassment, or the failure to pay overtime. Workers understandably fear being cast into a difficult job market, and conclude that the devil they know is better than the devil they don’t. An extensive legal framework exists, however, to protect employees against the very retaliation they might fear, and a deeper understanding of those protections may make employees more comfortable standing up to abusive practices.

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