How do you spell difficult economic times? EEOC. Over the last two years, during a persistent time of high unemployment and slow economic activity across the country, the Equal Employment Opportunity Commission reported a record high number of private sector discrimination claims. The EEOC received 99,947 charges of employment discrimination in 2011, breaking the 2010 record of 99,922 charges by only a small margin. As a result of these claims, the EEOC collected $455.6 million on behalf of claimants in 2011, which was a $51 million increase over the damages collected in 2010. What is behind this increase and what are the "hot" claims to watch out for?

For the second straight year, retaliation claims surpassed race discrimination claims as the largest single category of allegations of discrimination. This represents only the second time, along with 2010, that retaliation claims have constituted the largest category. In fact, allegations of race discrimination decreased along with sex discrimination claims.

This statistic may not be surprising given our state of affairs in 2012. Most employers are unsure of their duty not to discriminate and in fact try their best to be fair. But it is human nature to get even, especially if one feels unjustly accused. That is when retaliation trouble kicks in. It is always unlawful to retaliate against someone who complains about alleged discrimination or who claims to seek relief under the FMLA, FLSA or other employment statute.

Complaints of disability and age discrimination also increased in 2011. Age discrimination claims also represented the category of allegations resulting in the largest amount of money awarded, increasing by almost $30 million dollars. Back impairments were the most frequently cited impairment under the ADA, followed by other orthopedic impairments, depression, anxiety disorder and diabetes. This data also should not surprise us in 2012. The U.S. population is aging, which naturally means more older workers will experience, and therefore complain about, adverse employment actions. The same demographic should also increase disability claims, although the increased personal stress a hard economy brings to bear no doubt contributes to increased accommodation requests for alleged mental disabilities, as well as increased claims against already burdened employers who may resist such requests. This was also the first full year that the EEOC has enforced the Genetic Information Nondiscrimination Act (GINA). GINA seeks to prevent discrimination based upon the genetic information of employees, which includes genetic diseases in an employee's family history. The EEOC received 245 charges under this Act, but none have yet proceeded to litigation.

2011 was also a record year in terms of EEOC programs and independent enforcement efforts. The EEOC's mediation program, which permits parties to resolve the dispute independently of the administrative enforcement process, had its most successful year in its history. The mediation program produced 9,831 resolutions in 2011 that resulted in $170,053,021 in benefits to claimants. Similarly, the EEOC itself filed 300 lawsuits and obtained over $90 million in awards to workers, reflecting another increase in the money recovered by the EEOC's own litigation efforts.

The clear trend over the past few years reflects an increase in allegations of workplace bias and discrimination to record levels. There is no definite explanation for the 2010 and 2011 increases in EEOC complaints. They could be due to a number of factors including the EEOC's heightened enforcement efforts and the addition of GINA to the discrimination laws. The economy obviously plays a significant role, as employers may be more likely to make hasty termination decisions and laid off workers may be more likely to litigate when job searches fail. In any event, these increases provide a very real warning that employers must take the threat of liability under the workplace discrimination laws seriously. A strong corporate culture, as well as consistently followed, clear, written policies should help employers avoid liability in these areas.

About the Authors

Christopher T. Vrountas leads the Employment Practice Group for Nelson Kinder + Mosseau, PC. The firm has offices in Boston and Manchester. Mr. Vrountas represents a number of local companies as well as national and international businesses in matters involving employment discrimination and wage claims, covenants not to compete, intellectual property matters, and other business disputes. He has appeared before various state and federal civil rights commissions nationally and has tried employment and commercial matters on behalf of employers in both state and federal courts. He is a frequent speaker on employment law issues.

Cori Phillips Palmer is an associate at Nelson Kinder + Mosseau, where she has focused her practice on employment and commercial litigation. She recently graduated cum laude from Boston College Law School where she served as an editor and contributor for the Uniform Commercial Code Reporter- Digest.