Lawyers Weekly USA newspaper reported a 2004 Chubb Insurance Co. survey of private employers wherein pervasive statistics reveal unprecedented employee unrest:
- One in four companies surveyed had been sued by an employee or former employee in recent years;
- One in five had received a discrimination complaint filed with the EEOC or similar state agency;
- 44 percent of executives surveyed felt that an employee or former employee would sue their company in 2004 and 50 percent felt an employee would file an EEO charge;
- Nearly 25 percent felt it was likely that their company, directors and/or benefits plan administrators and fiduciaries would be sued by a retired employee in 2004; and
- More than 50 percent of the executives surveyed estimated that it would cost more than $100,000 to settle each employee suit and 10 percent believed it would cost at least $1 million.
Juries continue to side with employees. A California jury recently awarded $19 million to a former McKesson Corp. employee who claimed she was wrongfully discharged after being harassed at work due to her panic disorder condition. But federal court judges have tossed many unfounded EEO claim cases out of court on employer summary-judgment motions, serving to stem some of this litigation tide. For example, the 8th Circuit Court just ruled that an employee cannot sue under Title VII (EEO law) based on a single incident of sexual harassment by a supervisor where the employer promptly responded to a report of the incident. The company had no prior notice of the supervisor’s behavior and, upon notice, immediately took steps to shield the female worker from that supervisor.
Similarly, the Ohio-based 6th Circuit Federal Court of Appeals held that an employer who for safety reasons barred a diabetic employee from operating forklifts and other large equipment did not discriminate against the worker. The employer soundly based its restriction on its medical director's review of the worker's medical records, which revealed that the employee had suffered recurring hypoglycemic episodes.
That's why many plaintiff attorneys bring discrimination suits in state courts instead. In a recent Microsoft case the Washington State Supreme Court held that a systems engineer with hepatitis C who could no longer work 60 hours per week (medically advised to work no more than 40 hours per week) could sue where the employer's efforts to accommodate his disability and find an alternative position within the company were inadequate. The worker claimed the company did not predetermine that alternative jobs were compatible with the engineer's inability to work more than 40 hours per week. The state court looked at how vague the job descriptions were and the advisability of disclosing the disability to the hiring supervisors prior to (or after) an initial interview.
What steps can be taken to lower the employer's EEO suit risk? A starting point would include writing policies banning employment discrimination, sexual harassment and retaliation, effectively training all employees on those policies, establishing complaint internal reporting procedures, following uniform procedures for handling all terminations, complaint response procedures and legal counsel review of any sensitive terminations in advance.