By: Miriam L. Rosen, McDonald Hopkins LLC
We’re in a data driven age. Employers use data for everything from evaluating applicants, setting pay to determining the best ways to retain employees. And, employers can use the Equal Employment Opportunity Commission’s data on its Fiscal Year 2019 charge statistics to understand employment law risk and how to combat it.
Overall charges down, but some claims are up
For the second year in a row, the EEOC’s data reflects a decrease in the overall number of charges of discrimination filed. The statistics show that 72,675 charges of discrimination were filed in FY 2019 (from October 1, 2018 through September 30, 2019), which is a 4.9% drop from FY 2018. But that decline does not tell the whole story.
Retaliation charges remain the most common type of claim brought by individuals as FY 2019 saw 39,110 charges filed under all types of employment statutes. This accounts for almost 54% percent of all charges filed.
What’s the takeaway from this data?
Employee charges and complaints are going to happen, but employers have to help managers navigate the difficult aftermath of those complaints that can lead to retaliation claims. What should employers do? Have a policy that specifically states that retaliation will not be tolerated, carefully review adverse actions to ensure a legitimate non-retaliatory reason exists for the decision, and follow up with a complaining employee to catch any potential retaliation concerns.
Sex discrimination claims up; sexual harassment settlements up
Sex discrimination claims rose in FY 2019 from 24,655 to 25,532. Interestingly, following a record setting year in 2018, sexual harassment charges dropped slightly from 7,609 in 2018 to 7,514 in 2019. The FY 2019 level is still the second-highest number of sexual harassment charges in the past seven years.
What’s notable in the data, however, is that the record setting number of harassment charges in FY2018 is reflected in the dollar amount for harassment settlements reported in FY 2019. The EEOC collected a whooping $68.2 million to resolve sexual harassment violations in FY 2019. This exceeds the previous all-time record by over $10 million.
What’s the take away here?
The EEOC’s continued focus on sexual harassment is paying off for complaining parties in EEOC settlements and – separately, civil lawsuits. Even with a slight dip in charges, employers must continue to train employees and re-enforce expectations for appropriate, respectful workplaces.
Disability discrimination claims remain strong
Another data point that cannot be ignored is the continuing increase in disability discrimination claims. It won’t be a surprise to employers that in FY 2019 disability discrimination claims represented 1/3 of all EEOC charges filed.
What does this data tell employers?
One way to interpret this data is that there has been a shift in employees’ comfort level with raising disability concerns and with their expectations about how employers will respond. Every employer – large and small – has had to address requests for accommodations and leaves of absence and employers should regularly train managers on how to respond.
Other statistics of note
A few other interesting statistics of note: The EEOC only began tracking LBGTQ claims in 2013, but a record number of 1,868 charges were filed in FY 2019. Like the impact of the #MeToo movement, changes in society can be seen having a direct impact on the workplace. Another interesting statistic, while pregnancy discrimination charges were down slightly, the total settlement amount for those claims rose significantly from $16.6 million in FY 2018 to $22.2 million in FY 2019.
The EEOC data can be valuable for employers who take the time to assess what it means for the workplace situations that they face. The charge data should help employers identify areas where employment risk exists and where they should implement clear policies, train managers to identify heightened risk, and, of course, seek appropriate legal counsel.
This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at firstname.lastname@example.org or at (248) 220-1342.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. February 2020.