I’m sorry if you were expecting wild stories of employee shenanigans today. Yesterday, I asked for your stories, and I got nothin’! Y’all must work in the most compliant workplaces in America.
Speaking of which…
Last Friday, the U.S. Equal Employment Opportunity Commission announced (here) its Fiscal Year 2019 Enforcement and Litigation Data. Although the data does not account for complaints of discrimination filed with state and local fair employment practices agencies, the number of Charges of Discrimination filed with the EEOC continues to decline.
Specifically, the charge numbers show the following breakdowns by bases alleged, in descending order:
- Retaliation: 39,110 (53.8 percent of all charges filed)
- Disability: 24,238 (33.4 percent)
- Race: 23,976 (33.0 percent)
- Sex: 23,532 (32.4 percent)
- Age: 15,573 (21.4 percent)
- National Origin: 7,009 (9.6 percent)
- Color: 3,415 (4.7 percent)
- Religion: 2,725 (3.7 percent)
- Equal Pay Act: 1,117 (1.5 percent)
- Genetic Information: 209 (0.3 percent)
These percentages add up to more than 100% because some charges allege multiple bases.
Employers are taking #MeToo seriously.
A deeper look inside the numbers shows that sex discrimination claims were down year over year by nearly five percent, with fewer sexual harassment claims filed in 2019 than in 2016, which was a year before the #MeToo movement began. Plus, the number of EEOC ‘reasonable cause’ determinations (i.e., the EEOC believes based on its investigation that there was sexual harassment) was at its lowest since 2010. Year over year, ‘reasonable cause’ findings dropped about 40% from 2018. However, the EEOC continues to focus on enforcing claims of sexual harassment. In 2019, the agency recovered $68.2M for charging parties, which is up from $56.6M in the previous year.
Disparate treatment based on sex remains an issue.
The percentage of EEOC Charges that include sex discrimination claims was basically flat. And Equal Pay Act claims were up nearly five percent. So, we appear to have a shift from claims of hostile work environment to disparate treatment.
It’s not surprising that ‘retaliation’ continues to be the most common box checked on EEOC Charges. Remember that if an individual complains about discrimination — no matter the type — and then suffers an adverse employment action, that individual will claim retaliation if s/he believes that there is a nexus between the two events.
Race discrimination claims return to No. 2
Since 2011, the total number of race discrimination claims filed with the EEOC each year has fallen. And that trend continued in 2019. However, race discrimination claims remain a relatively high percentage of all EEOC Charges filed. Indeed, race overtook sex in 2019 as the second most common box checked on all EEOC Charges filed last year.
Anecdotally, the spate of anti-harassment training that employers conducted in 2018 and 2019 in response to #MeToo and some state laws requirements training have helped. Also, I imagine that the financial impact of bad press has motivated a culture shift in many organizations too. Whatever it is that your business is doing to promote respect in the workplace, keep it up! And, if you need some more best practices, I have 11 ideas for you.
But, if there really is a shift in claims of hostile work environment to unequal treatment — especially concerning compensation — consider devoting more resources to reviewing your pay practices. That investment could help deter claims of unequal treatment. Plus, you may prevent some wage-and-hour claims.
Diversity and inclusion also benefit the workplace. Indeed, the Society for Human Resource Management continues to emphasize these measures to improve overall workplace culture.