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    UE’s Trending Employment Claims

    Understanding trending employment claims can help institutions reduce and mitigate similar claims (and the accompanying costs) on their campuses.

    In recent years, the costs of United Educators’ (UE’s) educators legal liability (ELL) claims, including employment claims, has climbed drastically. As UE analyzes the reasons for the increases, we reviewed our top employment claims from 2020, considering frequency (number of claims) and severity (cost of claims). UE’s most frequent and most severe employment claims over the last year involve issues we’ve seen repeatedly through the years, indicating members must continue to focus attention on preventing and addressing them.

    Claims Frequency

    Employment claims UE saw most frequently in 2020 were:

    • Retaliation (21% of employment claims)
    • Gender discrimination (15%)
    • Race discrimination (13%)
    • Disability discrimination (12%)
    • Age discrimination (9%)

    It’s not surprising that retaliation – meaning an employer allegedly took a negative action against an employee who complained of discrimination, helped someone else do so, or participated in an investigation – was the top employment claim. Similarly, retaliation charges at the Equal Employment Opportunity Commission (EEOC) have increased steadily and have been the most frequently filed type of charge for several years.

    Retaliation encompasses a wide range of negative actions, from termination to schedule changes to denying training opportunities, and the claims are typically simple to allege. These claims are dangerous in part because – unlike many legal claims – they’re easy for juries to understand. It’s a natural human instinct to strike back at someone who accuses you of unlawful behavior (such as discrimination), and that instinct may be even stronger if the accusation is unfounded. However, juries tend to dislike employers that allow retaliation to go unchecked and can punish them with high damage awards at trial.

    Claims Severity

    Losses from 2020 employment claims exceed $76 million to date. The five most frequent claims account for 70% of that figure.

    While age discrimination is only the fifth most frequent employment claim, it’s the most severe, with losses of more than $17 million (23% of the total losses).

    Retaliation, the most frequent claim, is in a distant second place for severity but still totals over $12 million in losses (16% of the total).

    Gender discrimination (14% of losses), race discrimination (8%), and disability discrimination (7%) ranked third, fourth, and fifth in severity.

    Why were 2020 age discrimination claims much more expensive than other types of discrimination that were claimed more frequently? While each claim is unique, the answer may be that older employees as a group tend to have more seniority, longer tenure, and higher pay than other employees, so the cost to resolve their claims (through settlement as well as litigation) escalates accordingly.

    In any case, the comparative UE claim losses make plain that age discrimination claims are costly and, for that reason, dangerous.

    Recommended Actions

    Do this to put your institution in the best position to avoid claims of discrimination and retaliation – and to limit losses from claims that occur:

    • Review your school’s policies against discrimination. Ensure they explicitly prohibit discrimination on the bases of all characteristics protected by federal, state, and local law, or institutional policy, and list the protected categories. In addition, policies should clearly define and prohibit retaliation (including a statement that unlawful retaliation can occur even if the underlying complaint is meritless), explain how to report it, and make clear that retaliation can result in discipline up to and including termination.
    • Make internal reporting easy. If your school has a reporting or complaint mechanism that’s simple to understand and use, employees are likelier to raise discrimination allegations internally and provide a chance to address them early. Resolution becomes far more difficult and expensive once an employee files a discrimination charge with the EEOC or a state agency. The best structure and staffing for the reporting function depends on factors like your institution’s size, level of centralization, and campus culture, but the goal should be to make the process as straightforward and comfortable as possible for employees.
    • Evaluate your school’s training. While training must cover anti-discrimination laws and written institutional policies, it’s equally important to educate employees about your school’s expectations for civil and respectful workplace conduct. Hypotheticals that let employees put themselves in others’ shoes can be effective in teaching them to avoid, for example, jokes based on racial and cultural stereotypes. Many schools have separate policies against discrimination and workplace bullying; in training, give examples of conduct that would constitute bullying but not illegal discrimination (such as mocking overweight people, although this may depend on state or local law). Stress that bullying is also unacceptable and subjects employees to discipline.
    • Hold supervisors accountable. A perception of unfairness frequently leads to discrimination claims, so make supervisors accountable for their actions. Require supervisors to treat their employees consistently and equitably (which doesn’t mean treating everyone identically), and act appropriately if they fail to do so. Supervisors should be able to objectively justify significant differences in treatment, such as varying discipline for similar rule violations. Train supervisors to document their reasons for such decisions, rather than acting arbitrarily.
    • Don’t “go it alone” with layoffs. Many schools are considering restructuring because of financial difficulties, particularly difficulties resulting from the pandemic. If your institution must lay employees off, get advice from an experienced employment attorney as soon as you begin planning. Review your employee selection criteria and candidate lists with counsel before finalizing decisions, since layoffs often generate age discrimination claims in particular.

    More From UE

    Preventing Retaliation: A Guide For Managers
    Checklist: Employee Layoffs Driven By Financial Pressure
    Legal Literacy for Supervisors
    Mosaic Learning Program for Higher Ed
    Mosaic Learning Program for K-12 Schools

    By Hillary Pettegrew, Senior Risk Management Counsel

    February 2021