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Jill versus Jack - Sex-Based Discrimination Charges Hit New High. A New Trend, Old Problem or Election Year Politics?

The Equal Employment Opportunity Commission (EEOC) released its enforcement and litigation statistics for 2012. It received a total of 99,412 workplace discrimination charges with retaliation, race, and sex discrimination as the three most commonly filed charges.

Gender discrimination, which includes sexual harassment and pregnancy discrimination, was the third most prevalent charge with a total of 30,356 charges received, or 30.5 percent of total charges. This represents an all-time high for sex-based charges.

Along with a 10 percent reduction in its inventory, the EEOC is emphasizing its goal to eliminate systemic patterns of discrimination. This past year, the EEOC concluded 240 systemic investigations, leading to 46 conciliation agreements.

The EEOC is also improving the usefulness of its information by adding new data to its statistics tables. In an effort to be consistent with the reporting of other types of charges, the figures on sexual harassment, harassment in general, and pregnancy discrimination are now presented as charges filed only with the EEOC. In the past, this data also included charges filed with the EEOC's state agency partners. In addition, the EEOC has responded to requests by adding a data table that outlines the types of discrimination cited, such as "discharge" or "terms and conditions."

The EEOC is pleased with last year's accomplishments and looks forward to 2013 and implementing its new Strategic Enforcement Plan. "EEOC Reports Nearly 100,000 Job Bias Charges in Fiscal Year 2012," www.eeoc.gov (Jan. 28, 2013).

Commentary and Checklist

Gender discrimination is consistently one of the top three most frequently filed charges of discrimination, and includes sexual harassment and pregnancy discrimination.

Sexual discrimination charges reached an all-time high in 2012, with an increase of 3 percent from last year. Total charges received went over the 30,000 mark for the first time, resulting in $138.7 million dollars collected in monetary benefits.

Equal pay discrimination, another gender-based charge, continues to represent around one percent of all charges received. In 2012, the EEOC received a total of 1,082 new equal pay charges and secured $9.9 million in monetary benefits.

One potential reason for the spike is that 2012 was an election year. Throughout the year, politicians debated whether a "war on women" was taking place in the United States, and the media highlighted statistics that show that women in the workplace are paid less than men. Those statistics are not without critics, but, on face value, those statistics do create an impression of workplace inequality. Add to this the EEOC's stated intention to push what it perceives is gender inequality in the workplace, along with a struggling economy that has a female unemployment rate of 7.8 percent— what you have a spike in charges.

Equal opportunity is required for all employees in every aspect of employment, including salary, bonuses, promotions, work hours, training, education, and working conditions. This can prove challenging when managing pregnant employees. Managers may be tempted to consider pregnancy or caregiving responsibilities when making employment decisions, but this is illegal. Even if the manager believes his or her decisions are in the best interest of the employee, the manager needs to understand that it is discriminatory. Employment decisions should be based solely on ability and experience.

In addition, the workplace should be free from harassment based on sex, whether sexual in nature or otherwise. Employers need to keep in mind that harassment is illegal even if it does not target a specific individual, but is degrading to females in general and creates an offensive work environment.

Men are also targets of sexual harassment. In 2012, males filed 17.8 percent of the sexual harassment charges.

Here is a checklist employers can follow to help avoid gender discrimination in the workplace:
  • Implement an anti-discrimination policy that includes gender discrimination.
  • Make sure managers responsible for assignment, leave, schedules, promotions, and other employment decisions are trained on anti-discrimination policies.
  • Avoid steering women with caregiving responsibilities to less prestigious or lower-paid positions.
  • Monitor compensation and performance appraisal procedures for discrimination. Make sure they are gender-neutral.
  • Establish a clear sexual harassment policy that is communicated to all employees through ongoing training.
  • Have a harassment reporting procedure that encourages victims of sexual harassment to report the situation as soon as it occurs.
  • Immediately investigate all complaints of discrimination and harassment, so the victim is safe from further harassment and retaliation.
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