Compliance lessons from recent EEOC enforcement data

The EEOC’s enforcement and litigation report for fiscal year 2019, released Jan. 24, breaks down not just the enforcement and litigation numbers themselves, but also what specific EEOC charges have been filed state-by-state in the areas of sex, race, national origin, religion, and age. Some promising news for compliance officers is that EEOC charges fell overall, from 76,418 charges filed in FY2018 to 72,675 charges filed in FY2019, representing the fewest charges filed since FY1992.

Age and sex discrimination charges fell the most—by 1,338 and 1,123 charges, respectively—since last fiscal year. Charges brought for sexual harassment allegations also dipped, from 7,609 in FY2018 to 7,514 in FY2019.

While charges pertaining to sexual harassment allegations dipped, payouts in this area—obtained through mediation, conciliation, and settlements—swelled from $56.6 million in FY2018 to $68.2 million in FY2019. This also occurred at the height of the #MeToo movement. Comparatively, EEOC recoveries fell 4 percent overall, from $505 million in FY2018 to $486 million in FY2019.

In more than half of sexual harassment allegations since FY2010, the EEOC determined there was “no reasonable cause” to believe discrimination occurred based upon evidence obtained in an investigation, as defined by the EEOC. Perhaps this signals remediation of most sexual harassment allegations can be resolved internally when workplace misconduct is responded to appropriately.

Here are some other notable findings from the EEOC data that portend compliance lessons:

LGBT discrimination claims are skyrocketing. In January 2013, when the EEOC first began tracking data on allegations of discrimination related to gender identity and/or sexual orientation, just 808 claims were filed and less than $1 million was recovered. Last year’s numbers reflect the societal shift companies are experiencing regarding sexual orientation and gender identity claims in the workplace. In FY2019, an all-time high of 1,868 such discrimination claims were filed, totaling $7 million in recoveries.

With more and more sexual orientation and gender identity cases being filed in courts across the country, and an increasing number of states expanding the scope of their anti-discrimination laws to incorporate these areas of discrimination, it’s likely these numbers will continue to rise. For ethics and compliance officers, this is another workplace culture issue that deserves special attention, in the same manner as allegations of sexual harassment.

Disability discrimination claims on the rise. Following sexual discrimination claims, disability-related claims remain among the highest type of charge. In FY2019, there were 24,238 cases filed. While such claims have steadily declined the past six fiscal years, they still represented 33.4 percent of all EEOC claims.

From a compliance standpoint, it’s important for employees to understand through training what constitutes a disability, that supervisors and managers understand their compliance obligations under the American with Disabilities Act; that reasonable accommodations are provided to certain employees; and that job descriptions, job qualification standards, and reasonable accommodation processes are current and defensible.

Retaliation remains the most common claim across the board. In FY2019, companies faced 39,100 claims of retaliation, representing 54 percent of all EEOC charges filed.

From a compliance standpoint, a robust anti-retaliation program extends far beyond just having anti-retaliation policies and procedures in place. It requires compliance and human resources working together to define and ensure employees, including managers, know exactly what retaliation is through a comprehensive training program, validating that the program is being followed, and responding promptly and consistently to employee concerns.

Certain states are more susceptible than others to EEOC charges. Texas continues to see the highest number of EEOC charges filed by state, with 7,448 claims in FY2019, representing 10.2 percent of total U.S. charges. Florida saw the second highest number of claims, at 5,990 (8.2 percent of total U.S. charges), followed by Georgia, with 4,779 claims (6.6 percent). Pennsylvania had the fourth highest number of charges, with 4,312 claims, followed by California with 4,276 claims (each representing 5.9 percent).

These EEOC numbers by state may be explained, in part, by population. They might also indicate the EEOC is the most common enforcement mechanism in those states to file a discrimination claim, compared to other states that have stronger state laws or court systems that are more favorable to employees.