Although U.S. Equal Employment Opportunity Commission charges against employers are down in total, the commission remains highly active on a number of fronts, especially in regard to sexual harassment and LGBT discrimination cases.
The commission reports 76,418 charges were filed in Fiscal Year 2018, which ran from Oct. 1, 2017, through Sep. 30, 2018. That may sound like a lot, but it is only slightly higher than the 75,428 charges that occurred in 2005, the previous low point, and is significantly down from the 84,254 charges that were brought in FY 2017.
EEOC also filed 199 lawsuits in FY 2018, up from 184 filed in FY 2017, which in turn was more than double the number filed in FY 2016. When it comes to FY 2018, 117 of the lawsuits were on behalf of individuals, 45 were non-systemic suits with multiple victims, and another 37 were systemic claims. A case is considered systemic if it “has a broad impact on an industry, company or geographic area,” according to the commission.
During FY 2018 the agency obtained $505 million in payments for victims. This marks a substantial increase from $484 million in FY 2017 and $482.1 million in FY 2016. Also significant is that the commission was able to reduce its backlog of pending cases by 19.5%.
The decline in the total number of charges in FY 2018 has been ascribed to a variety of causes by different observers, ranging from agency budget shortfalls during the Trump Era to the state of the economy. Chaos at the top doesn’t help. The commission—constituted to have five members—currently only has two sitting commissioners and thus lacks a quorum to take actions on policies and rules.
Last year Sen. Mike Lee (R-Utah) placed a hold on the President’s slate of EEOC nominees because it included the renomination of Democrat Chai Feldblum, who has been credited or blamed for leading the commission’s actions promoting LGBT rights. The EEOC shrank to two members when her previous term ended at the beginning of this year.
The situation is so bad that the U.S. Chamber of Commerce and 29 other major employer groups wrote to Senate Leader Mitch McConnell earlier this month begging him to move forward on confirming Trump Republican nominee Janet Dhillon (another Trump Republican nominee Daniel Gade got tired of waiting and withdrew his name from contention).
“The lack of a quorum threatens to greatly affect our organizations and their members,” the employer coalition letter states. “The inability of the commission to act has had grave consequences for employers and other stakeholders.”
The employers blamed the lack of quorum on the commission’s inability to act on regulations relating to healthcare and workplace wellness plans, and on the decision to file an appeal of a recent district court decision reinstating the Obama-era version of the EEO-1 form that most employers are required to file annually.
The Search for Answers
If the reason for the drop in EEOC charges last year was not because of a lack of leadership or budget shortfalls, what could be the cause?
“My working theory is that the filing of charges waxes and wanes with the health of the overall economy,” says attorney Hannesson Murphy of law firm Barnes & Thornburg. “If things are purring along and it is easy for employees to move around, then the number of charges goes down; when a recession hits and employment is harder to find, the numbers spike up.”
Historically, this trend can be seen in the sharp increase in charges surrounding the bursting of the Dot-Com bubble and 9/11, and later with the 2008 recession, Murphy points out. “Given the overall health of the economy nowadays (with record low unemployment numbers), I’m happy to report that the latest figures seem to continue to support the theory that relatively good times equate to fewer filings.
Robin Shea, a partner in law firm Constangy Brooks Smith & Prophete, points out that the FY 2018 numbers are not completely good news. Sexual harassment charges increased by 13.6% to a total of 7,609 compared with FY 2017, and the monetary relief obtained by the EEOC in sexual harassment charges increased by more than 20%.
There also was a rise in the relatively low number of LGBT discrimination charges filed, representing only 1,811 of more than 24,000 sex discrimination charges. and an increase in the monetary relief obtained. In addition, although fewer than in several other categories, a number of those cases had a broad impact because they set precedents all other employers are expected to follow.
The 41 sexual harassment lawsuits (as opposed to charges) filed by the EEOC in FY 2018 marked a five-year high, and the EEOC also reported a total recovery of $56.6 million for victims of sexual harassment for the year.
However, the overwhelming majority of the cases brought by the EEOC in FY 2018 dealt with retaliation actions taken by employers against employees and/or stemmed from the traditional categories of racial, ethnic, religious, age and disability discrimination.
Shea believes the tide of sexual harassment cases which began with the #MeToo movement in late 2017 may have peaked. “A Gallup poll conducted in February 2019 indicated that a significant number of men and a smaller, but still significant, number of women were less likely to believe that sexual harassment in the workplace was a major problem, as compared with respondents who were polled in 2017.”
Shea and other employment attorneys also are quick to warn employers that the smaller total number of EEOC charges should not encourage employers to back off from compliance efforts.
“Despite the dips in overall charges filed, the EEOC’s enforcement efforts remain robust, and the EEOC continues to get results, as demonstrated by its recovery statistics,” warns law firm Seyfarth Shaw, which notes that by reducing its backlog, the EEOC has freed up additional resources for further enforcement efforts.
“Employers should keep an eye on these statistics, especially with retaliation and sex discrimination issues firmly in the forefront,” Seyfarth Shaw adds. “By continuing to set the culture in their workplaces through leadership and accountability, along with sound human resources practices such as sharp written policies, comprehensive training and robust response protocols, employers can guard against these issues, which clearly are not going away.”