2020 EEOC Roundup

What Employers Need to Know About the 2020 EEOC Charges Statistics and Insights Into What Employers Can Expect in 2021

By KATIE BAYT and JIM PLUNKETT

As 2021 unfolds, employers might benefit from a glimpse into the U.S. Equal Employment Opportunity Commission (EEOC)—where it has been and where it is going. Beginning with a snapshot of the EEOC’s own fiscal year (FY) 2020 Enforcement and Litigation Statistics, which the agency released on February 26, 2021, our analysis of the data provides employers with a granular view into the agency’s enforcement efforts during the past year and offers some insights into what employers can expect going forward.

Seven Things to Know about Charges in 2020

1. Downward Trend in Number of Charges

FY2020 saw the lowest number of charges received from workers in more than two decades. The agency received 67,448 charges—less than the 72,675 charges the agency received in FY2019 and continuing the steady downward trend since 2017 in the numbers of discrimination charges filed with the EEOC.

2. Monetary Resolution of Charges

The agency touted securing $439.2 million for private sector claimants, including approximately $333.2 million through mediation, conciliation, and settlements of charges, and $106 million through litigation in FY2020, significantly overshadowing the $385 million it secured for claimants in FY2019 and $407 million in FY2018.

Despite increased recovery overall, monetary resolutions of charges decreased by $13.4 million, from $346.6 million in FY2019 down to $333.2 million.

3. Most Frequently Filed Claims

In FY2020, retaliation continued to be the most frequently filed claim included in charges with the EEOC—an astounding 55.8 percent of all charges filed included a retaliation claim, and it does not appear that trend will change any time soon. Categories of claims that showed a slight increase in frequency from FY2019 were disability and color discrimination, while genetic information claims saw over a two-fold increase from the prior year. Otherwise, the remaining categories all saw slight decreases from FY2019. • Retaliation: 37,632 claims (55.8 percent of charges filed)

• Disability: 24,324 (36.1 percent of charges filed)

• Race: 22,064 (32.7 percent of charges filed)

• Sex: 21,398 (31.7 percent of charges filed)

• Age: 14,183 (21.0 percent of charges filed)

• National Origin: 6,377 (9.5 percent of charges filed)

• Color: 3,562 (5.35 percent of charges filed)

• Religion: 2,404 (3.6 percent of charges filed)

• Equal Pay Act: 980 (1.5 percent of charges filed)

• Genetic Information: 440 (0.7 percent of charges filed)

4. Hot Topics

While COVID-19 significantly affected 2020 in many ways, the EEOC’s fiscal year 2020 statistics (which ran from October 1, 2019 through September 30, 2020) only encompassed data from approximately seven months of the pandemic. Recently, EEOC Chair Charlotte Burrows, newly appointed by President Joe Biden, emphasized her view that the pandemic is not only a health and economic crisis, but also a civil rights crisis. As noted above, during FY2020 claims of disability discrimination saw a small uptick in frequency as compared to FY2019, while genetic information claims saw a considerable increase. Charges that included claims of discrimination based on color also increased slightly.

On the other hand, national origin and race discrimination claims showed a slight decrease in frequency from FY2019 despite concerns related to discrimination against Asian Americans and people of Asian descent in the workplace during the pandemic and the larger context of social justice issues that came to the forefront during 2020. The

full impact of the pandemic and the social justice movement remains to be seen and a combined review of FY2020 stats with next year’s enforcement data will likely help shed additional light on the impact of these issues on charges filed with the EEOC.

Also of note, despite the continued focus on sexual harassment issues in the workplace—or perhaps because of steps many employers are taking to address these issues—the number of sexual harassment claims filed dropped to 6,587, down from 7,514 filed in FY2019. Similarly, the amount of recovery through settlements relating to sexual harassment claims dropped from $68.2 million in FY2019 to $65.3 million in FY2020.

5. Pending Charges

Reducing its backlog of pending private-sector charge inventory continued to be an area of focus for the EEOC in FY2020. Pending charges again decreased in FY2020, this year by 3.7 percent to 41,951 charges—the lowest in 14 years.

6. Mediations

For FY2020, during part of which the EEOC utilized a mediation pilot program that expanded opportunities for mediation and incorporated video technology for virtual mediation, the EEOC reported that it achieved 6,272 successful private sector mediations resulting in over $156.6 million to claimants—slightly less than $159 million in FY2019.

7. Charges by State

Once again, in 2020, more charges were filed in Texas than any other state, with 6,876, and Florida came in second with 5,868. Pennsylvania followed in third with 4,599. The visualization below shows by state where claimants filed most frequently in 2020. The current EEOC is fully staffed with five commissioners, all of whom were appointed by former president Donald Trump. There are three Republicans: former chair Janet Dhillon, Keith Sonderling, and Andrea Lucas. Dhillon’s term does not end until July 1, 2022, while Sonderling’s and Lucas’s terms extend to 2024 and 2025, respectively. This means that the three Republican commissioners will outnumber Democratic commissioners until at least July 2022. The two Democrats on the EEOC are Chair Burrows and Vice Chair Jocelyn Samuels.

As chair, Burrows sets the policy agenda, but it is still unclear what this will look like. For example, what are Burrows’s plans for the 2017 proposed harassment guidance that has never been finalized? What will happen with employer-sponsored wellness programs, in light of the fact that the EEOC’s recent regulatory proposals addressing such programs were withdrawn? And, what about compensation discrimination and wage data collection? Stakeholders are anxious to learn what issues Burrows will prioritize and where the EEOC will head under her leadership.

While Burrows sets the agenda, actually executing policy initiatives could prove difficult when considering the EEOC’s current political demographics. The EEOC’s authority is primarily derived from the commissioners, and Burrows simply does not have the votes. To be sure, the EEOC and its commissioners are obviously more than their party affiliation, and there are previous examples of commissioner bipartisanship on big-ticket items. So with a chair setting the policy agenda but lacking the votes, what will this mean? Does this present an opportunity for bipartisanship or more gridlock? Regardless, this “upside down” commission—where the chair and vice chair are in the political minority—will likely be the political situation at the EEOC until at least July 2022. Despite these uncertainties, there are, however, some areas where there could be bi-partisan support, such as veterans outreach, guidance on COVID-19 and workplace protections, continuation of transparency efforts, continuation of robust enforcement and of efforts to reduce pending charge loads.

Ogletree Deakins’ EEO Advantage Administrative Charges Program helps employers manage their administrative charges filed with federal, state, and local agencies nationwide. EEO Advantage leverages technology and a thorough understanding of agency processes to manage administrative charges proactively and with budget certainty.

Katie Bayt, of counsel and director of the Ogletree Deakins EEO Advantage Administrative Charges Program. Contact Katie at katie.bayt@ogletree.com.

Jim Plunkett, shareholder and chair of Ogletree Governmental Affairs. Contact Jim at james.plunkett@ogletree.com.

OBESITY - Rethinking Assumptions

On Weight Management And Benefit Programs

By F. RANDY VOGENBERG

INTRODUCTION In 2002, two RAND researchers, health economist Roland Sturm and psychiatrist Kenneth Wells, examined the comparative effects of obesity, smoking, and heavy drinking on health expenditures in chronic conditions. Their research review found that obesity is linked to a big increase in chronic health conditions and significantly higher health expenditures affecting more people than smoking or heavy drinking. Although obesity had been a recognized health risk for a long time, Obesity was also recognized as a disease since 2013 by the American Medical Association (AMA). The idea that obesity is caused by insufficient willpower, lack of discipline, and bad choices began to transform how employers addressed health policy along with subsequent benefits. While many focus on the body mass index (BMI) when thinking about obesity, clinical aspects of obesity has many manifestations by individual and varies based on the cause of weight gain. There is not just one type or cause for obesity so there is no single solution. Obesity is related to genetic, psychological, physical, metabolic, neurological, and hormonal impairments. It is also directly linked to heart disease, sleep disorder, and certain cancers. Important to employers is that Obesity is among the few diseases that can negatively influence social and interpersonal relationships in the workplace.

WHY EMPLOYERS NEED TO ADDRESS OBESITY AS A DISEASE Health benefits have become disconnected from effective management of obesity. For some, obesity as a disease dismisses the importance of caloric intake (beverages and food), and exercise and enables individuals with obesity to escape responsibility for their condition. For others, obesity as a disease is a bridge to coordination of effective treatment and increased resources for weight loss. Since 2012 and ACA (Affordable Care Act) health reform coverage changes, many states now promote open coverage around efforts to diagnose obesity as well as management coverage for this medical condition. Uniform coverage remains prone to gaps or inconsistencies from plan to plan thereby allowing individuals with obesity to fall through benefit plan supports over time. This happens despite mandates for coverage in ACA although the same can’t be said for ERISA plans. This issue is not a simple issue for HR managers and senior executives. Clinically, the Obesity Medicine Association has defined obesity as a “chronic, relapsing, multi-factorial, neurobehavioral disease, wherein an increase in body fat promotes adipose tissue dysfunction and abnormal fat mass physical forces, resulting in adverse metabolic, biomechanical, and psychosocial health consequences.” Why obesity is a disease is becoming more evident as we increase our knowledge about obesity and its effects on individuals and in benefit offerings. Key to successfully confronting the obesity epidemic requires attacking the disease and its manifestations, not just its symptoms. Covid-19 has only heightened awareness around the importance of obesity and related health problems. Research is showing that individuals with obesity are at a higher risk for contracting as well as complicated medical management for symptoms associated with Covid-19, and in extreme cases death for young or old. The value proposition for chronic weight management includes addressing the fact that obese individuals have higher healthcare costs, so employers have an opportunity to comprehensively address this issue through improved benefit design. Engagement in these solutions can not only improve health risk and clinical outcomes, but address lowering the increasing costs of care year over year as a sustainable strategy.

WHAT EMPLOYERS CAN DO Environmental support in the workplace is being addressed by many employers through efforts in providing healthy food options, allowing reimbursement for or providing opportunities to participate in various physical activity, and promoting regular water drinking habits while minimizing sugar intake. Establishing a positive “Culture Of Health” has been addressed by employers but needs more to participate in the use of health promotion policies and programs offered to employees. Such policies support good lifestyle choices, access to services or support across simple lifestyle to medical supervised programs or surgery to address obesity in the workplace. This has been area of improvement in recent years, certainly since 2014. Health benefit design and incentives remains an important and underutilized area where employers can do better easily. Fundamental program elements should include lifestyle management (improved diets, physical activity and weight management) along with the previously mentioned environmental support and culture of health. A comprehensive benefit strategy should include medical weight management (care plus supplements and/or anti-obesity medications), coverage of visits with clinical support professionals, and aligned incentives for participation in obesity management options – all in addition to coverage of bariatric surgery. Such a comprehensive approach should give plan members access to needed resources coupled with appropriate incentives to drive levels of engagement. Community and family connections, similar to employees, need support, encouragement, and engagement by all family members with community resources and local events. Employers should develop partnerships with local businesses that offer access to fitness facilities and programs, access to healthy foods and beverage, and recreational opportunities. Employers can do more to support their employees and plan members along their weight management journey, which is beneficial to all concerned. The value of investment into a comprehensive program will drive gains in employee performance, lower health care costs, and improve satisfaction with employer sponsored benefits. Such gains can be obtained in the short term and over the long run as these are sustainable and easily obtained solutions to implement by an employer. Use the checklist on the oppositive page to assess your current plan offering and determine opportunities for meaningful improvement that can be measured.

F. Randy Vogenberg, Ph.D., FASHP