The 97 Percent Problem: Why Meritless Claims Matter

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.

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