According to the U.S. Equal Employment Opportunity Commission, for the first time ever, retaliation claims have surpassed race, gender and all other types of discrimination charges as the most commonly filed with the EEOC.

In other words, employers statistically are more likely to be charged with retaliating against workers than for mistreating them.

Janis Perrault, vice president of human resources at Oklahoma Medical Research Foundation, says the claims can border on the asinine.

Perrault recalls an employee claimed he was the victim of retaliation when his supervisor admonished him for answering a personal call on his cellphone in the middle of a meeting.

The stories may sometimes be humorous, but when it comes to defending themselves, employers aren’t laughing.

“I think it’s a combination of things,” Perrault says when asked about the rise in claims. “One thing, frankly, is the economy. I think some people are a bit desperate in terms of trying to generate an income. I do think in general that employees are a little more savvy than they’ve been in the past. They have their antennae out looking for something they view as retaliation.

The number for total charges reflects the number of individual charge filings. Because individuals often file charges claiming multiple types of discrimination, the number of total charges for any given fiscal year will be less than the total of the eight types of discrimination listed.

The data are compiled by the Office of Research, Information and Planning from data reported via the quarterly reconciled Data Summary Reports and compiled from EEOC’s Charge Data System and, from FY 2004 forward, EEOC’s Integrated Mission System.

“I don’t think businesses are treating employees any worse,” she says. “Quite the contrary, I think most employers have been more proactive in recent years in implementing policies and providing training to make sure not just their managers, but their employees, don’t run afoul of the law. I think retaliation claims are more difficult to defend than basic race or sex claims because of the ambiguous nature of them.”

EEOC spokesperson Christine Saah Nazer says employees are filing retaliation claims faster than ever before. EEOC data shows that retaliation claims increased by 100% from 1992 to 2006.

In fiscal year 2010, the EEOC received 36,258 claims of retaliation — nearly double the amount in 1997.

And juries seem to be more receptive to claims of retaliation than they do other discrimination claims.

“You do see trends in the law,” says David Slane, a practicing attorney in the metro for nearly 20 years who started his career with the Oklahoma Department of Labor before going into private practice. “It seems to me that there’s a trend that employees are filing claims for the first time ever that surpass all other forms of discrimination. What that tells me, at least from my perspective of doing employment law, is that employers – many of them – typically are not handling the discrimination claims of their employees in an appropriate fashion.”

He says a common scenario is where an employee complains to his or her boss about something going on in the office. In an effort to “fix” things, the employer might move the complaining employee to a different area to remove them from the situation, and take no further action.

“Many small-business men don’t have access to pick up the phone and call a lawyer, or they don’t have access to a human resource department,” Slane (pictured) says. “They go down and say, ‘You’re overreacting,’ or ‘You need to get thicker skin,’ and all of a sudden, they’ve just endorsed what the employee just did.”

And then what happens if the complaining employee is passed over for promotion or is included in the most recent round of downsizing?

“Employers get sucked-in in two regards,” Slane says. “One, when they just don’t handle it really well. Or we get some of the middle- and largersize companies and the employer starts moving the employees around, or trying to deal with it in other ways and they get themselves in a trap and it looks like they’re potentially taking illegal activity against the person in retaliation for the claim itself.”

Perrault says good humanresources policy can put an end to potential claims before they get started. But in the end, human nature can be a company’s undoing.

“It’s human nature for people to want to avoid someone who they feel has falsely accused them or in some way treat them different,” she says. “We absolutely cannot have that. I believe, many times, there is a sense of paranoia that develops after that, and people are looking for things that are not there.”

Photo by Shannon Cornman