The number of charges in 2008 reached a record high of 95,402 — up more than 15% from the previous year. (However, the total amount of money recovered in court actually went down, from $290.6 million to $274.4 million.)

Why the increase in charges? Many experts blame the economy. More employees lost their jobs, so more have had the opportunity to file a claim.

And they say the worst is yet to come — some predict the number of EEOC charges will reach well into six digits in ’09.

In many cases, yes, according to the Equal Employment Opportunity Commission.

The most recent case involves a suit brought by the EEOC against the Salvation Army regarding its language policy.

Two Spanish-speaking employees were fired for failing to speak English on the job and failing to learn language during their employment.

The Salvation Army’s handbook lists “Fluency in English; written and spoken” as a qualification for employment. Also, employees were required to speak English while they were at work.

Last week, the EEOC agreed to settle the case if those rules were changed.

The new policy requires “an ability to speak and understand English in a manner that is sufficient for effective communication with supervisors, employees, beneficiaries and customers, based on the assumption that such individuals can only speak and understand English.”

In other words: Requiring fluency in one language is discriminatory. Hiring employees with the ability communicate with customers, bosses and each other isn’t.

Between 1992 and 2007, pregnancy bias charges went up a whopping 65%, according to a recent study of EEOC data by the National Partnership for Women and Families.

For women of color, the numbers are even worse. Charges filed by minorities went up 76% in that time period.

Why? There’s no one answer, according to the study. More women are working now than in 1992, but the increase in charges has outpaced the number of women entering the workforce.

One explanation the Partnership gives is that companies and enforcement agencies haven’t focused on pregnancy issues as vigorously as they’ve targeted racial discrimination and other types of bias.

The group recommends increasing education for managers about their duties to accommodate pregnant employees.

HR knows how tough enforcing company policies can be. But it can be even tougher to decide when you need to bend the rules to avoid a day in court.

For example, the EEOC recently filed a lawsuit against the Grand Central Partnership, a business coalition in New York City. The problem? A dress code policy requiring security guards to keep long hair tucked under their hats.

The suit involves four Rastafarian guards whose faith prohibits them from cutting their dreadlocks, which have become too long to fit under a cap. The employees were disciplined for breaking the policy, and two of them had been suspended.

They had asked if they could tie the hair behind their backs, but the company wouldn’t make a policy exception.

When company rules and employee beliefs collide

Only time will tell how the employer fares in this case. If recent decisions have made one thing clear, it’s that courts are reluctant to question the legitimacy of employees’ religious beliefs.

That said, there are many times when policies can be strictly enforced, even if workers claim they can’t follow them. Here are some questions your managers should be able to answer when an employee asks for an exception to the rules:

• Is safety an issue? – As a rule of thumb, safety trumps everything. Courts won’t require a company to do anything that jeopardizes the health of an employee or his or her co-workers.
• Is there a ‘business necessity?’ – Companies usually prevail when they can prove making an exception to the rules will affect their ability to conduct business. For example, many companies ban visible tattoos on employees who meet customers face-to-face. Employees with religious ink probably won’t have a case for an exemption, since courts have upheld rules that require a professional appearance in front of customers.
• Is the policy consistently enforced? – One thing companies can’t do is let a rule go unenforced and then come down hard on an employee who might have a religious bias claim. In one recent case, an employee was fired for failing to cover his faith-mandated tattoos — despite the fact that he’d worked for six months without being reprimanded, and other tattooed employees hadn’t been disciplined. After failing to get the case thrown out, the company paid a $150,000 settlement (Cite: EEOC v. Red Robin Gourmet Burgers, Inc.).

There’s a bill likely to become law soon that will greatly expand the protections of the Americans with Disabilities Act. That’s why it’s more important than ever for supervisors to know the ins and outs of managing disabled employees.

A recent EEOC publication answers some of managers’ biggest questions about enforcing company policy while staying on the right side of the law. Here are three areas where many employers get tripped up:

Attendance problems

One question many companies face: Are disabled employees ever excused from following the company’s attendance rules?

Answer: It depends on the job.

For some positions, coming to work on time might be an “essential function” of the job– for example, if employees do shift work that requires them to be present at specific times and being late means other employees have to take on a significant burden by doing extra work. In those cases, an employee who’s chronically late can’t perform the job’s essential functions.

But in other jobs, employers might be able to accommodate someone’s tardiness. For example, the company may be able to change the employee’s shift (e.g., 10-6 instead 9-5) or offer some leniency in arrival times without adding any costs or negatively impacting other employees’ work.

Production standards

According to the EEOC, disabled employees should be held to the same production and performance standards as everyone else — lowering standards because employees can’t meet them is never considered a reasonable accommodation.

The employer’s responsibility is to look for a reasonable accommodation that will help an employee meet those standards.

For example, if a salesperson is disciplined for not making a required number of calls and tells his boss a disability is to blame, that doesn’t mean he’s off the hook — just that it’s time for the company to look into ways to accommodate him.

Violence and disruptive behavior

What if an employee threatens or physically harms a boss or co-worker and then claims it was because of a psychological disability? Do employers have to tolerate that behavior?

The simple answer: No. As the EEOC says, employers have the right to keep their workplaces free of “violence, threats of violence, stealing, or destruction of property” and prohibit other disruptive behavior, like cursing, yelling or abusing drugs and alcohol.

Even when an employee claims a disability was the cause, the employee can still be disciplined or fired, as any other employee would.

The key is consistency. Just like performance and production requirements, disabled employees must be held to the same conduct standards as all employees.

You can read the entire EEOC publication, titled The Americans with Disabilitites Act: Applying Performance and Conduct Standards to Employees with Disabilities here.

The Virginia Legislature is currently considering a bill that would allow companies to ask all employees to speak English at work.

So far, federal courts have ruled that blanket language policies are discriminatory and English can only be required when there’s a business necessity — for example, when workers have to communicate with English-speaking customers, or to improve employee safety.

The bill’s sponsor, Republican Sen. Ken Cuccinelli II, says its purpose is to allow companies to fire workers who don’t learn English without having to pay increased unemployment taxes.

The bill has a lot of opposition, and even if it passes, it wouldn’t protect employers in Virginia from federal courts and the EEOC.

We’ll keep you posted on the bill, and the activity of similar bills in other states.

The EEOC reports that harassment claims from men have steadily increased over the past few years, reaching an all-time high of 2,000 charges last year — now making up 16% of all harassment claims.

That’s almost double the number from 15 years ago.

Still, it’s a small percentage of the total claims, which can lead managers to look the other way or fail to take men’s complaints seriously. And that’s gotten a lot of companies burned in court.

The solution? Make a point to include examples of all forms of harassment in your training for managers.

In one recent case, an African-American employee sued for racial harassment. The culprit: A rap CD played loudly by a co-worker.

The co-worker would often listen to the music and sing along — including a bevy of racial slurs — within the employee’s earshot. He told his boss and co-worker the language was offense, but the music never stopped.

He took the company to court and won a $168,000 settlement.

Offensive music at work

It isn’t always direct confrontation between two employees that can lead to harassment or discrimination suits. Companies have been hit hard over the presence of music, jokes, posters or other media that employees found offensive.

The key for employers: Take action when employees complain. Even if the supervisor doesn’t understand why the employee’s offended, a court might.

Cite: EEOC v. Novellus Sys. Inc.

Religious discrimination: It’s becoming more common as a legal complaint — and it’s one that’s still misunderstood by many employers.

Last year, 2,880 religious discrimination charges were filed with the EEOC. That’s still a small percentage of the total charges, but the number’s rising quickly. Since 1992, religious bias claims have nearly doubled.

To clarify what companies need to look out for, the EEOC has offered some guidance in the form of a 94-page Compliance Manual. Here’s what the agency wants HR to know:

‘Religion’ defined

The law requires employers to accommodate — and not discriminate on the basis of — employees’ sincerely held religious beliefs. But what’s protected under the law?

The answer: A lot of things, according to the EEOC. It isn’t just traditional, organized religions that get protection. The law also covers beliefs that are “new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.”

How about the question of whether beliefs are “sincerely held” — in other words, what if you think someone’s faking it?

Not much luck for the employers there, either. As the EEOC says, “the ‘sincerity’ of an employee’s stated religious belief is usually not in dispute.” In some cases, insincerity may be obvious, but it’s usually best to give the employee the benefit of the doubt, since courts tend to believe employees’ beliefs are legit.

Religious accommodations

Most of the claims involve a failure to accommodate. The most common accommodations include occasional or permanent schedule changes, exceptions from dress codes and other rules to allow religious expression, and transferring employees or changing job duties if their beliefs bar them from performing a specific task.

Companies normally have to accommodate an employee if:

• The employee gives notice. Workers need to tell a supervisor what they want and explain that they want it for religious reasons.
• Co-workers’ rights aren’t interfered with. If an employee’s religious expression involves pressuring others to change their own beliefs or other forms of harassment, that behavior doesn’t need to be tolerated.
• The request is reasonable. Companies don’t need to take on “undue hardships.” For example, if nearly everyone in a department asks not to work a certain day of the week, or if there’s a legitimate business need for not making policy exceptions, the request can usually be denied.

What if co-workers complain that someone’s getting “special treatment”? That’s a reason some companies give for denying requests — and it’s the wrong move, says the EEOC.

The “undue hardship” has to be more than just the resentment or jealousy of other employees. There must be an actual cost involved, such as a big drop in productivity or the need to pay a lot of overtime to cover a schedule change.

Other pitfalls

In addition to botched accommodations, here are some things the EEOC says can get companies snagged with religious bias claims:

• Hiring practices — Obviously, you can’t refuse to hire someone because they do or don’t hold a certain belief. But companies are also barred from asking applicants if they need any religious accommodations, such as time off. What can you do? Just make sure applicants understand the schedule you need and ask if there’ll be any problems.
• Inconsistency — The Compliance Manual gives an example of a manager with two employees who follow different beliefs. They’ve both been late to work because of religious services. If the manager treats one of them differently, the company would probably have a lawsuit on its hands.
• Harassment — As with sexual harassment, employers can be liable if employees are harassed based on their religious beliefs.

You can read the entire document from the EEOC here.

The EEOC and the employee’s lawyers are going to look at how your company responds to the charge and might be able to use what they find against the company. Here are three things you definitely don’t want to do, according to plaintiffs’ attorney Whitney Warner, who spoke at this year’s annual Society for Human Resources Management conference:

• Issue a gag order. Many companies make the mistake of asking current employees not to talk to the EEOC or the ex-employee’s lawyer. But employers can be hit with retaliation suits if employees are punished for participating in a legal investigation.
• Fail to investigate the charge. Employers sometimes fail to conduct a thorough investigation after receiving the charge, and respond with a quick defense like, “Our company doesn’t discriminate.” But the charge must be treated the same as an internal complaint and investigated in the same way.
• Give out witnesses’ contact info. Once the employee’s attorneys get a hold of your response to the EEOC, they’ll try to contact the employees listed as witnesses. You’ll want them to have to call you first.