Data found in the the DFEH Annual Report for 2008 suggests that discrimination claims are much higher in California compared to the rest of the nation.
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California
Employment Law
Update
California’s
Discrimination Claim Rate
Outpaces National Average
By Christopher W. Olmsted
California’s Department of Fair Employment and Housing (DFEH) published an annual report in May, and the statistics reveal a much higher rate of some types of employee discrimination claims than is seen on the national level.
According to the report, the DFEH received over 20,000 complaints in 2008, approximately 3,000 more than in 2007. Of those complaints, 18,785 related to employment discrimination, and the balance related to housing discrimination.
A pie chart from the annual report can be seen by following this link: DFEH Pie Chart. At a glance it can be seen that disability claims were the most prevalent among protected classes, followed by retaliation, sexual harassment and age discrimination.
DFEH Statistics Compared to EEOC Statistics
The federal EEOC also publishes annual statistics, and comparing the national statistics with Calfornia’s statistics reveals notable disproportion in certain areas of discrimination claims.
Admittedly this author is not a statistician or demographer, but let’s start with a rough sense of proportion. According to the U.S. Census Bureau, the U.S. population is 304,059,724. California’s population is 36,756,666 (and by the way, they all seem to be in the I-5 when I need to drive somewhere). Roughly then, California represents 12 percent of the U.S. population. The civilian labor workforce ratio is similar. As of April 2009, according to the Department of Labor’s Bureau of Labor Statistics, about 141,000,000 people were employed in the U.S., and about 14,000,000 live in California.
If California represents 12 percent of the population, or 10 percent of the workforce, shouldn’t we see a proportionate number of discrimination claims compared to national statistics? Apparently not. The chart below compares 2008 statistics from California’s DFEH and the federal EEOC.
DFEH/EEOC Comparison Chart.
The fourth column shows that the ratio of California claims to national claims is higher than the 12 percent population ratio in all but two categories: race and sex discrimination.
Notably, disability and sex harassment claims are significantly higher, at 35% and 28% respectively.
Could this be a statistical fluke for 2008? Apparently not. Here are the statistics from the EEOC and DFEH, respectively, for sexual harassment claims from 2002, 2003 and 2004:
2002: 14,396 (U.S.) / 4,312 (CA) = 30%
2003: 13,566 (U.S.) / 3,345 (CA) = 25%
2004: 13,136 (U.S.) / 3,544 (CA) = 27%
So what is going on in the Golden State? Is there something in the water that produces randy men in the workplace? Are workers simply more litigious? California’s employment laws are certainly more liberal than federal laws, but these numbers do not reflect litigation rates; they are charge statistics. The statistics count the number of employees who have contacted the agency and filled out a short complaint form. The process is roughly the same as between the DFEH and EEOC, and it is not cumbersome for the employee. It is just as easy to file an agency claim in Minnesota as it is in California.
What about disability claims? According to a publication on the U.S. Census Bureau’s website, at last count there are about 41,250,000 disabled persons in the U.S., and 4,283,000 of them (10 percent) live in California. This is slightly less than the general population ratio of 12%. Now of course not everyone included in the U.S. Census group is working, nor are they necessarily disabled within the meaning of the federal ADA or California FEHA. The Census definitions of “disability” are different. But the high proportion of California disability discrimination claims is striking. Why is it so high? Are Californians particularly intolerant of disabled people? Is the disabled population more litigious here? Even with the recent ADA amendments, California law is much broader. Again, however, the difference in laws would not seem to explain the difference in charge statistics.
Undoubtedly there are many theories as to why California experiences a higher charge rate. Knowing why won’t change the facts of life for California businesses. The bottom line for California employers: be hyper diligent with your EEO policies lest you become another statistic.
DFEH Reports Increase In Enforcement Against Employers
In its annual report, the DFEH reported that it pursued many more employers in 2008. Prosecutions increased by 28 percent from the last six months of 2007 to the last six months of 2008.
A prosecution occurs when the DFEH undertakes an investigation and agency enforcement action against an employer. Such prosecutions can culminate in a hearing before an administrative judge under the auspices of the Fair Employment and Housing Commission (FEHC), or alternatively the matter may be heard in state court.
Most DFEH prosecutions settle, and here too the DFEH reports stronger action against employers. According to the annual report, post-accusation settlements increased by 18 percent in the last six months of 2008 compared to the same period in 2007. The DFEH also reports that it recovered over $9.5 million in 960 cases settled out of court. The average pre-accusation case settled for over $8,000 and the average post-accusation case settled for nearly $40,000.
New Enforcement Initiatives
The DFEH continues to increase its enforcement efforts. It reports the establishment of a “Special Investigations Unit” to investigate systemic discrimination. The agency is also issuing more Director's complaints. These are claims initiated by the agency rather than complaining employees. The Department is focusing on “high impact and/or under served cases.” This means, for example, that the DFEH may pursue cases that do not interest private plaintiff attorneys.
Additionally, the DFEH is pursuing more class complaints. “The DFEH merged multiple complaints into class complaints to maximize efficiency and effectiveness and to minimize duplication,” says the report. According to the report, the DFEH is also collaborating with other state and federal agencies to share resources and limit duplication.
Follow this link to download the DFEH’s report: DFEH Annual Report.
Download entire June 2009 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
DFEH Pie Chart
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EEOC & DFEH Charge Statistics Table
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