A Look Behind The EEOC Curtain: Enforcement Statistics Show Fewer Charges Filed In 2019, But Monetary Recoveries Ticked Up In Some Areas

Seyfarth Shaw LLP

Seyfarth Synopsis:  The EEOC recently released its enforcement and litigation statistics for Fiscal Year 2019. Notably, the statistics indicate that 2019 saw the lowest number of charges filed in over 20 years, though there was almost no perceptible dip in retaliation charges. For example, despite the #MeToo movement remaining prevalent in 2019, the number of sex discrimination charges fell to their lowest number since 1997. However, monetary benefits recovered through mediation, conciliation, and settlement jumped in some areas, including for charges alleging sexual harassment.

On January 24, 2020, the EEOC released its comprehensive enforcement and litigation statistics for Fiscal Year 2019 (available here). In addition to enforcement and litigation activity, the data breaks down charge statistics by allegation and state – showing which charges are being filed and where. The dip in the number of charges that employers saw in 2018 continued through 2019, with the number of charges reaching its lowest point since 1997. The prominence of sex discrimination charges seen in 2018 due to the #MeToo movement all but disappeared, with sex discrimination charges falling from the second-most filed charge to the fourth, dropping to their lowest number in over 20 years. 

Charges Are Down Overall

In total, 72,675 charges were filed in FY 2019. Not only is this down from the 76,418 charges that were filed in FY 2018, but also FY 2019 saw the fewest charges filed for all fiscal years going back to FY 1997 (the second lowest, 75,428 charges, occurred in FY 2005). Putting this number in perspective, the number of charges filed exceeded 80,000 per year in every year from FY 2007 until FY 2018, sometimes by wide margins.

Consistent with this overall decline, there was a decrease in almost every category of charges in FY 2019 as compared to FY 2018, with the exception of some very modest increases in charges alleging “color” discrimination (a separate protected class under Title VII) and violations of the Equal Pay Act. The categories that decreased the most were age and sex discrimination, by almost 1,600 and 1,100 charges, respectively. It should be noted, however, that this does not necessarily mean that fewer individuals are reaching out to the EEOC. This dip could be attributed, at least in part, to the agency’s implementation of new charge intake procedures in an effort to increase efficiencies. 

Texas And Florida Are Still Hot Spots; Illinois Falls From The Top Five

Looking at the states where the most charges were filed, the hot spots largely remained the same in FY 2019 as in FY 2018. Like FY 2018 and FY 2017, Texas (with 10.2 % of all charges filed) and Florida (with 8.2%) were the top two states for charges in FY 2019.

Texas and Florida are no surprise, given their relative populations. But population is still not everything when it comes to charges. For example, Georgia (at number 3) surpasses states with higher populations, and Pennsylvania (tied with California for fourth) has more filings than New York. Notably, Illinois fell out of the top five states this year, moving from fifth to sixth place with 5.4% of all charges filed.

Retaliation Charges Remain In First, With Disability Discrimination Charges Moving To Second

In total, 39,110 retaliation charges were filed with the EEOC in FY 2019. As has been the case for over five years, this made retaliation the most frequently filed charge in FY 2019. Behind retaliation were disability, race, and sex discrimination charges, each alleged in approximately 32%-33% of the charges filed with the EEOC. As the EEOC’s report noted, the percentages total more than 100 because some charges allege multiple bases of discrimination.

Disability discrimination was the second-most-often alleged theory of discrimination, seeing the highest percentage of charges filed since 1997 at 33.4%. Race discrimination came in a close third. Interestingly, sex discrimination charges (which would include pregnancy discrimination, gender discrimination, and sexual harassment) fell from the number two slot in FY 2018 back to the fourth most frequently filed charge, which was where it was in FY 2017. The #MeToo movement remained a prevalent media topic in FY 2019, so this drop in charges cannot be chalked up to decreased visibility.

Although the raw numbers do not provide any explanation, one would hope that the increased public scrutiny on this issue has led to greater adoption of effective measures to address sex discrimination, which are having an actual impact in the workplace.

EEOC Saw A Slight Dip in Overall Recoveries But Increases In Particular Areas

As we reported here, FY 2019 saw a slight drop in recoveries by the EEOC. During FY 2019, the EEOC recovered more than $486 million for alleged discrimination victims. This represents a 4% decrease from $505 million in FY 2018 and is roughly on par with the $484 million recovered during FY 2017. In particular, the relief obtained through mediation, conciliation, and settlement declined marginally from $354 million in FY 2018 to $347 million in FY 2019. Further, litigation recoveries dropped to $39.1 million in FY 2019 from $53.6 million in FY 2018 (the FY 2017 and 2016 numbers were $42.4 million and $52.2 million respectively).

Despite the overall marginal decrease in recoveries, FY 2019 saw recoveries in some particular areas increased. For example, relief obtained through mediation, conciliation, and settlement for sex harassment charges surged from $56.6 million in FY 2018 to $68.2 million in FY 2019. Recoveries for race discrimination-based charges similarly increased, jumping from $71.3 million in FY 2018 to $79.8 million in FY 2019.

Implications For Employers

Despite the dips in the overall number of charges, the EEOC’s enforcement efforts show no sign of waning. Employers should treat these statistics as an early warning system that shows where the Commission’s enforcement efforts may be heading next – to that end, it is notable that retaliation and disability discrimination issues are firmly in the forefront. By continuing to set the culture in their workplaces through leadership and accountability, along with sound human resources practices, employers can guard against these issues and avoid hefty settlements and litigation with the EEOC.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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