February 5, 2020
There are a few surprises in the enforcement and litigation statistics for FY 2019 released by the Equal Employment Opportunity Commission (“EEOC”). The EEOC’s data shows that there were only 72,675 charges of discrimination filed in FY 2019. This is a low watermark for the EEOC’s caseload and represents 3,743 less charges than were filed in FY 2018. Looking back at the available data since 1992, fewer discrimination charges were filed in FY 2019 than in any other year and this is a far cry from its peak year in 2011 with 99,947 charges filed. While this has necessarily caused a decrease in the number of charges filed in each of the ten types of discrimination tracked by the EEOC, the percentage of charges for each type of discrimination is of interest.
The following is a breakdown of claims filed in FY 2019 (some charges alleged multiple bases):
- Retaliation: 39,110 (53.8%)
- Race: 23,976 (33.0%)
- Disability: 24,238 (33.4%)
- Sex: 23,532 (32.4%)
- Age: 15,573 (21.4%)
- National Origin: 7,009 (9.6%)
- Religion: 2,725 (3.7%)
- Color: 3,415 (4.7%)
- Equal Pay Act: 1,117 (1.5%)
- Genetic Information: 209 (0.3%)
In FY 2019, the percentage of sex discrimination claims only rose slightly to 32.4% of all charges filed. Even though the overall number of sex discrimination charges decreased, sex discrimination charges compared to all filed charges is at its all-time high according to the EEOC’s data. In FY 2018, we finally saw the number of sexual harassment charges increase following the #MeToo movement. However, surprisingly, this did not carry over into FY 2019. In FY 2019, the EEOC received 7,514 charges of sexual harassment, which was a little more than 10% of all filed charges. This was a 1.2% decrease from the prior fiscal year. Even so, in the wake of the #MeToo movement, the EEOC has significantly increased the monetary benefits related to sexual harassment charges obtained through its administrative process from $56.6 million in FY 2018 to $68.2 million in FY 2019. It is doubtful there will be an increase in monetary awards for FY 2020 given the decrease in the number of sexual harassment charges, reasonable cause findings and successful conciliations in FY 2019.
The number of LGBT-based sex discrimination charges increased in FY 2019 to 1,868 charges, which represents over 1000 more charges alleging LGBT discrimination in FY 2019 than were filed when the EEOC began tracking these charges in FY 2013. The increase in LGBT discrimination charges suggests a greater awareness of these issues as the Supreme Court is expected to rule this year about whether these claims are viable under Title VII’s statutory framework.
The following charge categories experienced only a slight increase in percentage of all charges filed in FY 2019: race discrimination (increased .8%), sex discrimination (increased .1%), national origin discrimination (increased .3%), color discrimination (increased .6%), age discrimination (increased .3%), and claims under the Equal Pay Act (.1% increase). Similarly, the percentages of charges of discrimination asserting claims for discrimination based on religion and the Genetic Information Nondiscrimination Act remain static.
Predictably, the percentage of claims for disability discrimination continues to increase from 32.2% in FY 2018 to 33.4% in FY 2019 of all filed charges. Of note, the percentages of disability discrimination charges have increased every year since 2008, which coincides with the ADA Amendments Act of 2008, effective January 1, 2009.
Retaliation charges experienced the largest gain in percentage of all filed charges in FY 2019, which increased 2.2%. Retaliation charges continue to represent the majority of charges with 53.8% of all filed charges in FY 2019. Interestingly, the percentage of EEOC charges alleging retaliation continues to increase significantly. By comparison, twenty years ago, in 1999, retaliation claims represented only 25.4% of all charges filed with the EEOC, and this percentage has increased every year since.
As it relates to the EEOC’s litigation data, the EEOC filed only 157 lawsuits in FY 2019, in comparison to 217 lawsuits filed in FY 2018. Similarly, the EEOC’s recovery on behalf of employees through litigation significantly reduced from $53.6 million in FY 2018 to $39.1 million in FY 2019, even though the number of matters resolved increased from 156 in FY 2018 to 180 in FY 2019.
What does this mean for employers? Despite this promising data for employers, the latest statistics should remind employers of the EEOC’s continued focus on claims of retaliation, which are frequently included in other charges of discrimination or harassment. The data shows retaliation was by far the most frequently alleged basis for charges brought to the EEOC, making up over half of all filed charges. Employers should be mindful of the importance of enforcing policies prohibiting discrimination, harassment and retaliation, setting a respectful workplace culture, and investigating workplace complaints. Looking forward to 2020, employers should train management and human resources personnel on how to receive and address internal reports of discrimination and/or harassment. Likewise, company policies and procedures regarding complaints should be clearly drafted and consistently followed. These steps can reduce the frequency of retaliation charges and support the employer’s defense when claims arise.