Utah’s job discrimination watchdog, which last year was the subject of a critical audit that has the Utah Legislature considering imposing changes, filed an increased number of charges against employers in 2017, according to recently released statistics.
The Utah Antidiscrimination and Labor Division, known as UALD in employment law circles, boosted discrimination charges by more than a third. In all, UALD accused employers of 1,831 instances of discrimination in 2017.
Of those, the biggest jump was in what are called retaliation complaints. That’s when a worker reports experiencing or witnessing discrimination based on one of the protected classes — such as race, sex, age or pregnancy — and the manager or employer retaliates against the complainant.
UALD filed 519 retaliation charges in 2017 — a leap of 66 percent compared to 2016. Retaliation complaints can accumulate because they can follow concerns originating with any of the other categories.
Lauren Scholnick, a Utah attorney who frequently represents workers, says retaliation complaints likely are rising because more employees are reporting underlying harassment to management, who may respond by retaliating. Retaliation also can be easier to demonstrate.
An employee can often show retaliation by merely noting the date he or she reported bad behavior and punishments that followed — like termination, a demotion, changes in work hours, fewer hours or verbal abuse. To show the underlying discrimination, the employee has to show any treatment or actions were taken because of the employee’s protected status.
“You can say you have been harassed,” Scholnick said, “but connecting that to your protected class status is difficult and more circumstantial.”
Spencer Phillips, a lawyer who represents workers and businesses and sits on an UALD advisory board, said employers who don’t commit underlying discrimination can commit retaliation. It often starts with a supervisor or manager being offended at the discrimination accusation.
“And because they are offended, they start to treat [the employee] not the same way as they did before,” Phillips said, “and that’s where a retaliation claim begins.”
Among other protected classes of workers, gender and disability complaints were the two most common.
Multiple charges can be filed in the same case. UALD might accuse an employer of discriminating against an employee on the basis of religion and skin color, for instance, followed by the employer retaliating against the employee for complaining — amounting to three charges.
Workers with discrimination claims can report them to UALD or the U.S. Equal Employment Opportunity Commission, known as the EEOC. Both are meant as way to address a claim without having to go to court. However, those wanting to file a federal discrimination lawsuit against an employer need to first file their complaint with either UALD or the commission.
EEOC charges against Utah employers were steady over the past two years: 264 charges were filed against employers in 2017. That was only five more than the previous year.
Spencer assumes more workers are filing their claims with UALD because it’s a local agency — the EEOC regional office is in Phoenix — and offers faster response times than EEOC.
The number of charges filed by UALD represents only a fraction of the employees who complained to the agency. An audit released in January 2017 said UALD filed charges in just 0.7 percent of cases over five fiscal years — far less than the averages in surrounding states and less than the nationwide federal rate.
The number of charges also doesn’t reflect outcomes. Employers could settle complaints with the workers or be exonerated later in UALD’s process.
The UALD and EEOC have ways to order discrimination to stop and for the employee to receive back pay or compensation. The UALD also can order the employer to implement training to prevent discrimination.
In the most recent fiscal year, the UALD awarded $1 million to people who said they were discriminated against, according to the agency’s annual report.
But it’s the low number of charges that has received the most attention from employment lawyers and the Utah Legislature.
The audit said UALD investigations were inadequate, the investigators weren’t well trained, and they didn’t have the means to obtain all the necessary evidence.
Rep. Jim Dunnigan, R-Taylorsville, sponsored a bill that would help implement recommendations from the audit, including giving UALD more power to subpoena records. Dunnigan said his goal is to improve processes at the UALD and that doing so would produce more outcomes favoring employees.
Dunnigan’s bill, HB30, passed in the House in January and cleared the Senate on Friday. It awaits a signature or veto from Gov. Gary Herbert.
UALD only has jurisdiction over workplaces with 15 or more employees. Another bill in the Utah Legislature, HB283, would extend discrimination protections to any Utah business that employs workers. The measure is waiting for a hearing in the House.
Scholnick and other lawyers and community groups have pushed for the bill. She says that under current Utah law, workers at companies with fewer than 15 workers can experience sexual harassment and other discrimination and have no ability to file a charge of discrimination.