Jottings By An Employer's Lawyer

Thursday, February 09, 2006

EEOC Charges Down in Number

Ross Runkel at the Lawmemo Employment Law Blog has a good post on the recently released EEOC statistics for the government fiscal year that ended September 30, 2005. The headline tags one of the big points, EEOC discrimination charges decline in 2005.

The EEOC is attributing the decline to its active outreach program. To the extent that the outreach is to employees, I would have thought that it would have had the opposite effect.

One other factor not mentioned that I think should have resulted in more charges not less, is the impact of National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). A number of courts have interpreted Morgan, correctly in my view, to require separate charges for discrete employment acts, even if they occur after an initial charge has been filed.

Maybe that hasn't resulted in more charges because the EEOC disagrees with that position. You have to go to footnote 186 of Chapter 2 of their Compliance Manual to find their position. In fairness they do point out one appellate court has held and another has hinted that their position is wrong:
But see Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir. 2003) (finding that under Morgan, discrete acts that occurred after a charge is filed must be raised in a new charge, even if related to acts included in the pending charge); EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1272 n.5 (11th Cir. 2002) (court stated that because the issue of post-charge discrimination had not been presented squarely, it would not address it, but noted that a charge may not encompass events that occur after it is filed because Title VII requires a charge to be filed after the unlawful employment practice occurred). The Commission disagrees with this view. Nothing in Morgan suggests that a new charge must be filed when a charge challenging related acts already exists. Thus, Morgan does not affect existing case law that permits subsequent related acts to be addressed in an ongoing proceeding.
If they are wrong, then Potter should lead to more charges being filed not less.

A couple of other things that jumped out at me from the Commission's numbers -- 1 out 5 charges is for disability discrimination and 1 out of 3 allege retaliation, often in conjunction with some other substantive claim. Couple that last figure with the increasing number of retaliation claims brought under statutes outside the EEOC's purview and you begin to see how important retaliation is as a cause of action.


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