On April 10, the EEOC released its charge filing statistics for Fiscal Year 2018, which ran from October 1, 2017 to September 30, 2018. These annually disclosed statistics reveal continued trends in the employment litigation space and provide an opportunity for employers to ensure their policies and practices address issues arising in the ever-changing modern workplace.

Charges Decline Overall

2018 statistics show a continued downtrend in the number of EEOC charge filings overall. Filings peaked in FY 2011 with 99,947 charges. In FY 2018, 76,418 charges were filed, approximately 25% fewer charges than the 2011 high.

Between FY 2017 (84,254 total charges filed) and FY 2018, there was an overall 10% decrease in charge filings. Among those charges that decreased the most year over year, race charges decreased by 14% (28,528 in FY 2017 and 24,600 in FY 2018), age charges decreased by 8% (18,376 in FY 2017 and 16,911 in FY 2018), and disability charges also decreased by 8% (26,838 in FY 2017 and 24,605 in FY 2018).

Further, the overall number of sex-related charges (including sexual harassment claims) decreased by about 4% (25,605 in FY 2017 and 24,655 in FY 2018). Finally, consistent with the overall reduction in the number of charges filed in FY 2018, retaliation claims under all statutes handled by the EEOC decreased by about 1.5% from FY 2017 (41,097 in FY 2017 and 39,469 in FY 2018).

Digging Deeper: Sex, Age, Disability and Retaliation Take Bigger Pieces of the Pie

But the numbers, without more, tell only part of the story. The more helpful data for employers can be seen by analyzing the increases in certain kinds of charges in proportion to the total number of charges filed during the fiscal year. And, in FY 2018, we see workplace litigation trends mirroring the cultural and societal shifts of our time.

  • Sex-Related Charges. As EEOC Acting Chair Victoria A. Lipnic stated upon release of the FY 2018 statistics:

We cannot look back on last year without noting the significant impact of the #MeToo movement in the number of sexual harassment and retaliation charges filed with the agency.”

The percentage of sex-related charges reflects the impact of the #MeToo movement. Sex-related charges increased in FY 2018 to 32.3% of all charges filed, up from 30.4% in FY 2017, reflecting the highest proportion of sex-related charges since 1992. Of the sex-related charges filed, 7,609 alleged sexual harassment under federal law, reflecting a 13% from FY 2017 (6,718 charges). The EEOC obtained $56.6 million in monetary benefits for alleged victims of workplace sexual harassment.

LGBT-based sex discrimination charges also increased slightly between FY 2017 and FY 2018, by 2.8%. But this is only part of the story. LGBT charges have steadily increased for the last five years. Between FY 2014 (when full LGBT charge data first became available) and FY 2018, LGBT-based charges increased by 39% (from 1,100 charges in FY 2014 to 1,811 in FY 2018). The dramatic increase in LGBT-based charges over the last half decade appears to indicate a cultural shift in society’s understanding of sexual orientation and tracks the EEOC’s position over the last five years that Title VII protects employees on the basis of their sexual orientation and gender identity. The US Supreme Court is set to take up the issue of whether Title VII protects workers against LGBT-related discrimination in its next term through three cases: Altitude Express v. Zarda (2nd Circuit.); Bostock v. Clayton County, Georgia (11th Circuit) (which has been consolidated with Altitude Express); and R.G. & G.R. Harris Funeral Homes v. EEOC (6th Circuit). Employers should continue monitoring these trends and consult with their HR and legal teams to ensure their trainings, policies and practices sufficiently address this evolving area of employment law.

  • Retaliation Charges. As in years past, retaliation claims remained the largest category, comprising a staggering 51.6% of the total number of all charges filed. This is an increase from FY 2017, where 48.8% of all charges filed were retaliation-related. While retaliation charges have steadily increased over the last 20 years, this year’s increase may be due in part to the #MeToo movement’s emphasis on reporting claims of workplace mistreatment. Again, employers should review their policies and investigation practices, and take a pulse on their workplace culture to ensure reports of workplace misconduct are encouraged and that employees are free from retaliation based on such reports.
  • Age-Related Charges. Of the 76,418 charges filed in FY 2018, 22.1% contained age-related claims, compared to 21.8% in FY 2017. Such proportional increases may well reflect the expanding population of baby boomers at or near retirement age who feel they have been mistreated in the workplace because of their age. This, coupled with a higher population of millennials entering the workforce and gaining seniority within their organizations, may be key catalysts to the steady proportional increase in age-related charges. Employers will be well-advised to (1) ensure their policies and practices are geared toward addressing claims of age-related mistreatment; and (2) train HR teams on the proper approach to investigating and effectively resolving such allegations.
  • Disability-Related Charges. Similarly, the proportion of disability-related charges also increased in FY 2018. 32.2% of charges included disability claims in FY 2018, compared to 31.9% in FY 2017. This increase may be attributed to the evolving nature of society’s and the courts’ understanding of an actionable “disability” within the meaning of the Americans with Disabilities Act. Indeed, after the 2008 ADA Amendments Act expanded the definition of the term “disability” under the ADA, the number and proportion of disability-related charges increased markedly. In 2007, disability-related charges comprised only 21.4% of total charge allegations. As of FY 2018, such charge allegations comprise 32.2% of charge allegations overall. Again, employers should review their policies and confer with their HR and legal teams to ensure that internal practices align with the expanding understandings of what it means to have a “disability” in the 21st Century workplace.

Worker Bees: EEOC Work By The Numbers

While the overall number of charges is down, the EEOC is keeping busy. The EEOC secured $505 million for employees in FY 2018; filed 199 merits discrimination lawsuits (117 individual suits, 45 involving multiple individuals, and 37 systemic discrimination cases); and is managing 302 active cases on court dockets.

The agency reduced its charge workload (which appears to be a euphemism for “backlog”) to 49,607 charges, a total year-over-year reduction of 19.5%. The EEOC attributes this cut to its deployment of “new strategies to more efficiently prioritize charges with merit, more quickly resolve investigations, and improve the agency’s digital systems.” Further, the EEOC disclosed that it handled over 519,000 calls via its toll-free number, addressed 34,600 e-mails, and responded to over 200,000 inquiries in the field offices.

The Upshot

FY 2018’s statistics show that sexual discrimination and harassment (including those involving LGBT issues), age- and disability-related discrimination, and retaliation continue as mainstays in the realm of employee complaints. Employers should continue to refine and update policies and practices to account for these steadily expanding areas. In coming years, we expect that sex discrimination and harassment will continue growing in proportion to the total number of charges filed, as will retaliation claims. The economy, changing social expectations, anticipated court rulings and the political climate will all influence the kinds and numbers of charges filed in the coming years.