A federal government agency official recently told me that charges of employment discrimination were way up across his large department. Most cases, he said, involved hostile workplace environment claims, and about 97 percent were lacking merit and ultimately dismissed.
My legal mind immediately thought, “Only 3 percent at most are valid claims: Great legal defense record, especially when you consider these were probably settled internally and at relatively low financial cost.
But then my understanding of broader workplace issues kicked in: A tiny minority of valid claims is not the true problem, especially in an era of crimped government or private sector resources. The real problem is the 97 percent of discrimination claims found to be “lacking merit.”
These cases may have turned out to be baseless, but still must be investigated over many weeks or even months, creating dissension and distraction, and draining far more human and financial resources than the 3 percent of cases with merit.
No doubt, some truly lacked any credible evidence whatsoever. Employees may have disliked how they were told to perform a task, while others perceived hostility or discrimination where no reasonable person would. A few employees may have feared being fired and filed charges to try to save their jobs.
But, in my experience, investigators typically uncover some improper, questionable or uncivil conduct in the vast majority of cases, even though the evidence doesn’t add up to a violation of the law: an off-color or ethnic joke, a derisive racial comment, emails that shouldn’t have been sent, or an interview or on-the-job question that shouldn’t have been asked.
How do we address the underlying misbehavior and blatant incivility that causes employees to silently lose focus on their jobs or file claims while draining the organization’s limited human and financial resources or harming workplace productivity or safety?
Based on more than 25 years of working with governments and businesses, I offer these recommendations to help you reduce EEO claims and build productive, inclusive workplaces in your organizations:
Obeying the law is only a starting point. Whenever I hear a leader ask me to mark the line between legal and illegal conduct, it raises a red flag: If that’s all you’re worried about, then you’ll surely create conditions that lead to 97 percent of the charges, driving up costs while harming productivity. Narrowly focusing on educating managers and employees about what amounts to legal discrimination isn’t enough. Even if most understand and apply the rules, discrimination training alone won’t provide a barrier to the kinds of behaviors that spawn most claims and cause tremendous organizational harm.
Values are too vague. Many organizations have broad-based value statements focusing on dignity and respect of employees. But the problem is these values don’t go far enough because they’re not translated into daily conduct standards. As a matter of workplace civility, operational effectiveness and legal risk management, governments and private employers need to adopt specific workplace behavioral standards for employees and leaders alike.
The tone is set at the top of the organization. Senior leaders – through what they say and do and how they respond to daily breaches of workplace standards — need to make it clear that improper conduct is simply unacceptable – even if it’s not technically illegal. Accountability is vital.
Stop improper conduct before it gets out of hand. In the language of sports, the best defense is a good offense. Don’t wait for second, third and fourth offenses before addressing improper conduct. By dealing with misbehavior as it occurs, day to day, you can reduce the chances of more serious violations and claims, while ensuring a more focused, productive and effective workplace for employees.
What suggestions do you have to help organizations deal with the 97 percent problem? I welcome them in the comments section below.
Meritless claims matter because not all of them are meritless. I was the target of retaliation, discrimination and worked in a hostile environment for two years. I was treated in a manner that excedes the definition of Unlawful Harrassment which is a civil rights violation. The end result was an injury to both hands, my right arm up to my neck. The injury is permanent. I provided documents, pictures, a list of witnesses, non of which was read by the EEOC employee assigned to my case, and none of the witnesses were contacted. The reason I was given for a no merit finding was, Since my supervisor habitually engaged in acts that violated federal and state labor laws, it didn’t matter that she had harassed me for two years resulting in physical injury to me, I wasn’t special. This is a clear statement in support of people that repeatedly violate labor laws in our country. it also supports criminal behavior because an arguement could be made that any person who repeatedly violates the law isn’t accountable. I do not lie and intend to take a polygraph as I am currently working on a statement with intent to publish. Nothing is more insulting than being called a liar by dishonest and corrupt government employees. The EEOC finds most cases lacking merit. I emailed them to ask what criteria was used to determine merit. This was after an article was published about the EEOC winning 100+ million for a disabled woman because walmart had changed her schedule. Disabling employees is ok, but don’t change their schedule. Of course, I received no reply. I wanted Justice, not millions of dollars. Government needs to be responsible and accountable when they violate the law. It is the principal that matters now. I know no one really cares about anyone else, it’s all about money, well I care. I doubt I am the only individual the EEOC has destroyed by their unjust company practices nor will I be the last.