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A Discriminatory Conundrum

The SHRM HR Magazine that faithfully arrives in my office every month sometimes collects dust while it stares up at me from my desk. Don’t be offended, SHRM…it just does. I had a chance to thumb through the March 2011 edition today and while a number of things caught my eye, one in particular stood out. According to the U.S. Equal Employment Opportunity Commission (EEOC), there were more Retaliation charges filed in 2010 than any other discriminatory claim – including Race, Sex, Disability, or Age. In fact, 36,258 employees claimed they were wrongfully retaliated against as a direct result of their having brought forth a matter in good faith. That’s over 1/3 of all EEOC claims last year and an increase of 8% over 2009.

So I received and processed this interesting information in a number of ways. And I’m still kind of scratching my head over it. I mean, should we be happy we’re seeing fewer Race, Sex, Disability, and Age related charges? Well, unfortunately it turns out that we’re not. We’re just seeing more retaliation charges. In fact, we’re seeing more charges across the board. And I know this because I went and did an in-depth super-sonic crazy mo fo data analysis on it. That’s right, every now and then I have to scratch that analytical itch; you can take the guy out of the CPA, but you can’t take the CPA out of the guy. Anyway, in doing so I made a number of extremely insightful observations…only one of which I’ll share with you today because it’s just that good. Here’s how it goes…

The total American workforce has remained relatively constant over the last ten years – roughly 131M employees. The number of EEOC claims over the last ten years has increased by roughly 25% to almost 100K a year. That’s one EEOC claim per every .00076 employees. Wait, though. That’s not really the interesting part. Here it comes…the number of bonafide HR professionals* has almost doubled in the last ten years – from 120,000 to 210,000.

So let me get this straight: We have more HR “professionals” watching the shop – more people who are supposed to be versed in and dedicated to providing an environment where employees are safe from violations of policy, safety, and law; said HR professionals have supposedly moved up the value chain in organizations far and wide over the last decade – we have more visibility, credibility, and influence; yet the number of discriminatory claims per employee continues to rise?!?! Hmmmmm.

I posted a piece just a couple of weeks ago on the dangers of drawing too many conclusions from statistics alone. I understand wholeheartedly that the disparity I’ve just highlighted can’t be taken at face value. One could argue, as an example, that a) the world of work is litigious, will always be litigious, and litigation will remain on its sky-rocketing trajectory as long as lawyers are allowed to roam the Earth untethered, 2) employees are getting smarter around what constitutes fair and unfair treatment and they are less and less patient with the crap heaped upon them, c) organizations inherently have assholes working for them and assholes can’t be tamed…no matter how hard you try, and 4) as a result of these and other environmental factors (including increased involuntary terminations, economy, etc.) this ten year 25% increase in claims would be much higher if it weren’t for HR’s exemplary efforts. But is all of that just a cop out?

It’s certainly not solely HR’s responsibility to keep these claims from cropping up – we all own that duty. But we’re kind of the standard bearer, aren’t we? .00076 claims per employee may not seem like a lot – especially if you consider many of them have absolutely no merit. If you’re a 2,500 person shop like my company is, though, that works out (mathematically) to be two claims a year.** I don’t have to educate you on the cost of these claims – financial and otherwise. They are tremendous. And beyond those costs, it’s just the wrong way to treat people. What I can’t get past, though, is that these numbers just don’t jive with everything I thought HR was doing to advance its cause. Have we fallen asleep at the switch on this more fundamental – yet crucial – aspect of our jobs? Have we gravitated to the more exciting juicy strategic stuff only to the detriment of the humans we are beholden to? I don’t know…what do you think?

*Based on number of SHRM members. I recognize that number doesn’t entirely fit in this analysis, but it was really the only reliable indicator that I could find on the size of the HR profession. It is at least directionally reasonable.

**This in no way is to suggest my organization has two EEOC claims a year. In fact, I have no idea how many claims – if any – we have a year. That stuff doesn’t hit my desk directly.

Image Credit: Nathan Colquhoun

  • akaBruno

    How much of the increase may be correlated with the continued decline of unions? Many of the issues that would have been handled, both formally and informally, internally with union representation are now being referred to the EEOC?

  • John Jorgensen

    Charlie, I think that there may be a couple of reasons for the increase in charges. One that leaps to mind first is the economy. People who are discharged are looking for every dollar they might be able to get and this is one. Second, it is much easier to get info on filing charges. The EEOC web site seems easy to navigate and get information on filing charges. Third is a snowball effect. People are hearing of other people getting attention (and cash, in some cases) by filing charges.

    This is not a scientific or statistical study like yours. Just a feeling by someone who has been in the trenches a while.

  • Charlie

    @Matt – really interesting question. not sure how to quantify it, but i’m sure it has in fact contributed to it.

    @John – i think you’re right on all fronts…particularly the snowball effect. what role do we play in keeping that snowball from running down hill, though? maybe this is purely a function of human nature – we’ll always see at least some level of claims. ordinarily i would go with that as the explanation. but the recent rise in claims coupled with the recent rise in HR attention still doesn’t see to jive. thanks for the comment.

  • USB 3G

    Well, good news for me, thanks!