The general good news for employers is that charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) dropped over nine percent from 2017 to 2018 from 84,254 in 2017 to 76,418 in 2018. In fact, you have to go all the way back to 2006 to find charge numbers lower than those recorded for 2018.
Considering the #MeToo movement and heightened focus on employer conduct in the media, the drop is not only surprising, but a promising sign that employers are moving in the right direction.
Charges dropped from 2017 levels in 2018 in almost every discrimination category:
- Race discrimination charges from 28,528 to 24,600 (-13.768 percent);
- Sex discrimination charges from 25,605 to 24,655 (-3.710 percent);
- National origin discrimination charges from 8,299 to 7,106 (-14.375 percent);
- Religious discrimination charges from 3,436 to 2,859 (-16.792 percent);
- Color discrimination charges from 3,240 to 3,166 (-2.283 percent);
- Retaliation charges, all statutes, from 41,097 to 39,469 (-3.961 percent);
- Retaliation charges, Title VII, from 32,023 to 30,556 (-4.581 percent);
- Age discrimination charges from 18,376 to 16,911 (-7.972 percent); and
- Disability discrimination charges from 26,838 to 24,605 (-8.320 percent).
Of statutory charges, only Equal Pay Act and GINA charges rose and only slightly. Equal Pay Act charges rose from 996 in 2017 to 1066 in 2018 and GINA charges rose from 206 charges to 220 charges in 2018.
However, of sex-based discrimination charges, charges of sexual harassment did climb significantly from 6,696 in 2017 to 7,609 in 2018, a 13.635 percent increase. Even though sexual harassment charges rose in 2018, they did not hit record numbers, however. There were more sexual harassment charges filed in 2011 (7,809 charges) than in 2018. Also notable in the 2018 charge statistics, males claiming sexual harassment dropped from 16.5 percent in 2017 to 15.9 percent in 2018. LGBT discrimination and harassment charges rose from 1,762 in 2017 to 1,811 in 2018.
Another note…harassment charges in general, charges of racial, religious, and other forms of harassment, fell from 26,978 in 2017 to 26,699 in 2018 representing a drop of more than one percentage point.
Severity of charges also fell slightly in 2018 with some exceptions, most notably charges for sexual harassment and retaliation. According to the EEOC, monetary benefits collected for sexual harassment alone rose over 22 percent from 2017 to 2018. In 2018, there were over 1,819 merit resolutions, equating to 1,682 in 2017, which equates to roughly $31,000 per resolution in 2018, up from $27,526 in 2017.
Monetary benefits collected for retaliation charges rose nearly four percent. Also, important as to retaliation charges, retaliation claims altogether, comprise more than 50 percent (51.6 percent) of all charges filed with the EEOC).
What do these numbers mean for employers?
First and foremost, a good economy helps dampen charges of discrimination and other forms of wrongdoing. Most employee charges of wrongdoing follow a termination. In a good economy where there are more jobs than applicants, there are fewer terminations and terminated employees are more apt to find "like employment" and therefore not have an economic motive to sue. If 2019 continues to see economic growth, employers may even see further drops in employment charges.
Sexual harassment and retaliation charges remain concerns for employers, however. A 13 percent increase in sexual harassment charges is reflective of how the #MeToo movement and allegations of sexual misconduct are having an impact on the number of employee charges of sexual harassment.
To that point, just two years ago in 2016, charges of sexual harassment filed with the EEOC had dropped to a record low numbers for the decade. In October of 2017, the charges of sexual assault and harassment were made against Harvey Weinstein and others, leading to a significant uptick in not only frequency, but also in the severity related to charges of sexual harassment.
Finally, trial attorneys understand that retaliation claims are more difficult to summarily adjudicate and, therefore, they are bringing more charges of retaliation or coupling charges of retaliation with traditional equal employment claims.
Employers should expand training on prevention of sexual misconduct and, in addition to providing sexual harassment training, provide training on civility and workplace boundaries.
Importantly, to prevent retaliation claims, employers should focus on providing safe and effective means for employees to report wrongdoing and investigate quickly and professionally all claims of wrongdoing, including claims for sexual harassment and discrimination.
*Please note the sponsor of this platform may provide sexual harassment and other sexual misconduct training at no cost or at discounted cost to your organization. Please contact us for details.*