The U.S. Equal Employment Opportunity Commission (EEOC) just released its fiscal year (FY) 2014 enforcement and litigation statistical report for the private sector. Presented annually, the report always contains some nuggets for employers and employment attorneys, and this year’s is no exception. Among the FY 2014 highlights are the following statistics:
- The EEOC received 88,778 charges in FY 2014—about a 5 percent reduction from FY 2013. The EEOC attributes this decrease, in part, to a government shutdown during a portion of the fiscal year.
- For the sixth year in a row, retaliation-based charges were the most common. At 42.8 percent of all charges filed, retaliation claims are at their highest percentage in history. Race discrimination, sex discrimination, and disability discrimination charges rounded out the top four in terms of prevalence, as they did in FY 2013, while charges based on genetic information and brought under the Genetic Information Nondiscrimination Act (GINA) remained the rarest, at only 0.4 percent of all charges.
- The number of discharge- and discipline-related charges dropped slightly—roughly 3 percent from FY 2013, though discharge remained the most common issue among all EEOC charges. Harassment-related charges were the second most common, increasing by 3 percent from FY 2013. Some increases and decreases were far more eye-opening:
- Charges alleging discriminatory advertisements more than doubled, from 49 to 121. Most were age-related claims.
- Charges based upon allegedly unlawful waivers rose from 31 to 85.
- Charges based on employment testing increased from 157 to 231.
- Charges based on early retirement incentives climbed from 28 to 52.
- The overall percentage of “reasonable cause” findings (an initial finding in favor of the employee) dipped from 3.6 percent to 3.1 percent in FY 2013, representing the lowest percentage of cause findings in the 18-year period tracked by the EEOC. Compare this to the nearly 10 percent of charges that led to probable cause findings in 2001.
- Sexual harassment charges, Equal Pay Act charges, and GINA charges were the most likely to result in a cause finding (in all, a 6 percent likelihood) while race-based charges (2.2 percent) and color-based charges (2.2 percent) were the least likely to result in a cause finding.
- On a state-by-state basis, Texas employers continued to face more EEOC charges than all others with 8,035 charges, reflecting 9.1 percent of all charges filed in the nation. Employers in Florida, with 7,528 charges, and California, with 6,363 charges, rounded out the top three for the third year in a row.
- Claimants recovered only $296.1 million in FY 2014 via the EEOC’s administrative process—a decrease of $75.9 million from FY 2013.
- The EEOC filed 133 merits lawsuits (two more than the prior fiscal year), with the vast majority—76 suits asserting claims under Title VII of the Civil Rights Act of 1964, 49 suits under the Americans with Disabilities Act (ADA), and 12 suits under the Age Discrimination in Employment Act (ADEA). The GINA suits remain sparse: the EEOC filed its first three suits asserting GINA claims in FY 2013, but only filed two suits asserting GINA claims in FY 2014.
- The EEOC resolved only 144 lawsuits—compared to 222 suits resolved in FY 2013—and received only $22.5 million in monetary benefits from settlements and awards, as compared to $38.6 million in FY 2013. This drop in the EEOC’s lawsuit resolution statistics is significant: While FY 2013 totals were already the lowest in over 15 years, FY 2014 totals were even lower.
Prudent employers should reflect upon the EEOC’s FY 2014 data and incorporate some lessons learned. At a minimum, employers should provide sufficient training on retaliation, as the prevalence of those charges remains at a historic level. The training should drive home the point that even if an employee’s complaint is without merit, retaliation is unacceptable and unlawful.
Further, as noted last year, periodic, comprehensive harassment training remains critical, particularly as those charges remain among the most prevalent and most difficult to dismiss for lack of probable cause. Employers in states with greater EEOC activity, such as Texas, California, and Florida, should proceed with even greater caution.
With an increasing number of claims based on allegedly unlawful advertisements (most, age-based), human resources departments should consider reviewing all advertisements in advance of publication to ensure that unlawful preferences (age-based, gender-based, etc.) are excluded. Employers should ensure that their HR or legal departments review any employee waivers, early retirement programs, and employee testing systems, as claims related to these initiatives are on the rise.
Finally, employers should compare their own statistics to the EEOC’s data, both on a regional and national basis. If the results are dramatically different in one or more locales or for one or more charge types a problem might exist that calls for enhanced training or targeted personnel actions.