Evaluation of EEOC’s 2020 Enforcement and Litigation Statistics

By TAYLOR FLAKE LAWSON

The United States Equal Employment Opportunity Commission (EEOC) released its Enforcement and Litigation Statistics and Agency Financial Report for Fiscal Year (FY) 2020 (ending September 30, 2020) earlier in 2021. FY 2020’s data continued in a similar trend as that of FY 2019, with retaliation being the highest percentage of charges filed and with a continual decrease in the total amount of charges filed. In FY 2020, 67,448 claims of wrongdoing were filed. Note that the percentages add up to more than 100 % because some charges allege multiple bases.

The breakdown of the 67,488 charges filed is as follows:

By fiscal year end, the EEOC had resolved 70,804 total charges on its rolls, reducing its inventory of pending charges by 3.7%. By resolving 70,804 charges in FY 2020, the EEOC increased its merit factor resolution rate to 17.4 percent, up from 15.6 percent in FY 2019. Merit resolutions refer to charges that are resolved using the agency’s administrative process in favor of the person that filed the charge. The EEOC also began its Mediation Pilot Program during FY 2020. During the pilot program, the EEOC conducted 9,036 mediations. Roughly two-thirds of those mediations (6,272) resulted in successful resolution of claims, suggesting the pilot program was a worthwhile endeavor. The EEOC has implemented an agency-wide mediation program since 1999. Through that program, the EEOC has conducted over 240,000 mediations, with 170,000 of the mediations resulting in a resolution. The Mediation Pilot Program increased the opportunities for parties to resolve charges during an investigation. The Mediation Pilot Program began on July 6, 2020, and expanded the categories of charges eligible for mediation. The Program also incorporated the use of technology, which allowed participants to use video technology to hold virtual mediations. Previously, mediation participants were only able to participate over audio-only conferences. Program participants preferred the additional use of technology, leading many to believe that video mediations will continue.

As a result of these resolutions, the EEOC secured $439.2 million for victims of discrimination in the private sector and state and local government workplaces. Of that $439.2 million, $333.2 million was secured through voluntary resolutions like mediation, conciliation, and settlements. $106 million was secured through litigation. During FY 2020, the EEOC secured the highest amount of money for employees who allege discrimination in the past sixteen years.

Charge

Retaliation

Disability

Race

Sex

Age

National Origin

Color

Religion

Equal Pay Act

Genetic Information # of Charges Filed % of all Charges Filed

37,632 55.8%

24,324 36.1 %

22, 064 32.7%

21, 398

14,183

6,377 31.7%

21%

9.5%

3,562

2,404

980 5.3%

3.6%

1.5%

440 0.7%

FY 2020 Compared to 2019

FY 2020 data brought about interesting changes and trends. One trend in particular, which has continued since FY 2016, is a decrease in the total number of charges filed. 67,488 complaints were filed in FY 2020, compared to 72,675 filed in FY 2019. Though the total charges filed decreased, retaliation remained at the top of the list in FY 2019, and FY 2020, accounting for 37,632 charges filed (55.8% of all charges).

The number of sex discrimination charges filed also made an interesting change. In FY 2020, there were 21,398 charges filed involving claims of sex discrimination under Title VII. The number of charges filed was a 9% decrease from FY 2019. 1,857 of the charges filed involved discrimination based on LGBT status. Additionally, settlements for sex discrimination claims reached an all-time high of 9.5 percent of claims settled. The category of sex discrimination is a category for employers to give greater attention, given the United States Supreme Court’s ruling in Bostock v. Clayton County, which held that an employer who terminates an employee because they are gay or bisexual violates Title VII of the Civil Rights Act of 1964. This new ruling is expected to impact the number of charges filed and the potential resolutions of the charges filed.

Charges filed in the disability category increased significantly, accounting for 36.1 percent of all charges filed in FY 2020 (versus 33.4 percent of total charges in FY 2019). The two highest categories of impairments of those disability claims filed in FY 2020 involved anxiety disorders at 9.8 percent and depression

In resolving the charges filed, the EEOC filed 93 merit lawsuits and 13 systemic lawsuits in FY 2020. Merit lawsuits were down in FY 2020 compared to FY 2019, where 144 merit lawsuits were filed. In FY 2019, 17 systemic lawsuits were filed. Again this trend may be attributable to the effects of the COVID pandemic in stalling legal hearings.

Advice to Employers

While a decrease in EEOC charges may suggest greater peace and harmony in the workplace, employers should not be misled by these decreasing EEOC charges filed. The EEOC is still receiving a significant number of claims to result in over 67,000 charges filed in the last year, and the EEOC is still pursuing and obtaining resolution on many of those claims in favor of the complainant. With the ever-evolving COVID pandemic still impacting interactions between management and labor, employers are faced with new concerns from workers who may be more alert to actions that they perceive as discriminatory and/ or retaliatory.

The increase in disability-related discrimination charges, with mental health disabilities as the leading types of disabilities claimed, suggests a heightened concern for disputes involving workers and management who are both emotionally and mentally exhausted, particularly from an economy rankled by a COVID shutdown and restart. Employers will need to tactfully balance concerns over discrimination claims against business needs and post-pandemic economic realities. As such, employers should continue to remain diligent in evaluating and implementing anti-retaliation and anti-discrimination policies. To protect against potential EEOC charges, Employers should consider the following:

• Evaluate and revise any existing anti-discrimination and antiretaliation policies to ensure that the policies issued are compliant with relevant Federal and State law, especially in light of recent

COVID-related litigation and administrative rules.

• Carefully review all requests to work remotely and other work requests involving employee health concerns to ensure that the

Americans with Disabilities Act interactive process is either not triggered or appropriately addressed.

• Fairly evaluate requests to continue working remotely or other alternative work situations to determine whether such continued work processes pose an undue hardship.

• Regularly train managers, supervisors, and other decision-makers on all anti-discrimination and anti-retaliation policies and any new

COVID-related legal requirements.

Taylor Flake Lawson, Associate Attorney

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