Workplace Discrimination Charges at Record HighBy
Jennifer Green was the only female in her department. Every day, the computer-aided drafting technician at Richardson (Tex.)-based engineering company Childress Engineering Services said, she was subjected to "a relentlessly offensive, sexually hostile working environment because of my sex," including comments about "masturbation, sexist comments about women, oral sex, gay jokes, anal sex, and ‘banging a whore’ " from her male co-workers. "I cannot recall a work day at Childress when I was not subjected to sexually offensive language," she stated in her charge.
Green, who started working at Childress in 2006 at age 34, complained of sex-based discrimination to the company and later to the U.S. Equal Employment Opportunity Commission, a move, she said, that got her fired. The EEOC sued Childress, and in May 2011 the company settled the lawsuit, agreeing to pay $55,000 in damages, back pay, and attorney’s fees. Among other requirements, the company must now revise its sexual harassment policy and conduct annual training for five years on the laws against sexual harassment and retaliation in the workplace.
Green brought her case in 2009 but hers is just one of thousands of workplace discrimination complaints in Texas. The Lone Star State had more "merit resolutions"—or charges resolved with a favorable outcome for employees (suggesting there is at least some merit to the charge)—than any other state in fiscal 2010, according to data provided to Businessweek.com by the EEOC, a government agency that investigates discrimination charges on the basis of race, sex, national origin, religion, retaliation, age, disability, and genetic information.
The agency’s definition of merit resolutions includes negotiated settlements, withdrawals with benefits, successful conciliations, and unsuccessful conciliations—but not litigation (such as Green’s case). Details of merit resolutions (or merit closures, as they are sometimes called) are not open to the public, says EEOC spokesperson Christine Nazer.
Nationwide, there were a record 99,922 charges of discrimination in fiscal 2010, the most recent annual data available, and 20,149 merit resolutions. (Many charges are closed for administrative reasons such as failed communication, or because there is no reasonable cause to believe that discrimination occurred based on evidence obtained in the EEOC’s investigation.) Among Texas’s 1,780 merit closures with private employers and state and local government employers, retaliation was the leading complaint, followed by sex, race, and disability-based discrimination. Nationwide, retaliation was the charge most often brought.
Population Just One Factor
The EEOC enforces laws such as Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, and Title I of the Americans with Disabilities Act.
Businessweek.com created a list of the 20 states with the highest incidence of workplace discrimination based on the number of merit resolutions with private employers and state and local government employers (not federal government) by state.
Businessweek.com looked at merit resolutions rather than total charges as the EEOC found no reasonable cause to believe that discrimination occurred in 64.3 percent of all closures in fiscal 2010. (In such cases, the charging party may still bring private court action. To see a breakdown of EEOC closures, click here.)
After Texas, the states with the next highest number of merit resolutions were California, Florida, Georgia, and Indiana. Of course, population plays a role in the high rate of discrimination: Texas is the second most populous state, California the first, and Florida the fourth. Yet as Indiana illustrates—as the 15th most populous state with the fifth-greatest number of merit resolutions—population is only one factor.
Other states with a high rate of workplace discrimination for the population in fiscal 2010 include Alabama (23rd most populous state), Colorado (22nd most populous), Mississippi (31st most populous), and Arkansas (32nd most populous), which all ranked in the top 20 based on the number of merit resolutions. New York, the third most populous state in the country, ranked 12th.
Vermont had the fewest merit resolutions, 4, followed by Montana (5), Alaska (8), Idaho (12), and Rhode Island (13).
In general, Texas is an employer-friendly state, says Todd Slobin, partner with Houston employment law firm Shellist Lazarz Slobin. (The firm recently won a $3.2 million sexual harassment lawsuit against former Brazoria County judge James Blackstock.)
Texas, like many other states, is an "employment at will" state, says Houston-based employment attorney Jacqueline Armstrong (who represents two other women suing Blackstock for sexual harassment and Brazoria County for failing to take remedial action). In Texas, employment at will means either party in an employment relationship may modify the terms of employment or terminate the relationship for any reason or no particular reason at all, with or without advance notice, unless there is a statute or an express agreement (such as an employment contract) to the contrary, according to the Texas Workforce Commission.
"Texas wants to create a vibrant economy and allow employers to move and make changes in the workforce," says Armstrong. "It wants to encourage [companies] to move to Texas and make sure that those employers don’t have the risk of employment litigation. The employment at will doctrine is one way to contain that," and may create an environment where employers believe they are protected, she adds.
Still, "from EEOC’s perspective, it doesn’t matter if it’s an employment at will state," says Nicholas Inzeo, director of the office of field programs at the EEOC. The agency still investigates charges to determine whether discrimination occurred.
Nationwide, employment discrimination charge filings reached a record high last year. Preliminary EEOC data for fiscal 2011, which are subject to change, indicate that charge receipts are slightly ahead of last year’s pace. "There still is a good amount of discrimination that is occurring," says Inzeo.
There might be a growing number of unemployed in the faltering U.S. economy who believe they are victims of discrimination but "we see discrimination cases in good economic times and bad economic times," Inzeo says. "I think sometimes in good economic times people find other jobs and leave the bad one. They just want to leave it behind and don’t file a charge with us."
Still, filings do not necessarily rise in a weak economy, he says. In uncertain times, people may also be discouraged from filing a charge of discrimination because they do not want to face retaliation that could lead to losing their job. It is illegal to retaliate against people who have filed a charge, but it is a common complaint, show EEOC data.
More discrimination may be occurring, but Dallas attorney John Schulman, who worked on Jennifer Green’s case, says over the years there also may just be "more people who think there is a point to filing a charge than in the past." Today, many employees have a better understanding of their rights.
Click here to see the 20 states with the most workplace discrimination.