United States: EEOC FY 2020 Statistics: EEOC's Recovery On Behalf Of Employees Dramatically Increased, Number Of Discrimination Charges At All-Time Low

The number of charges of discrimination filed has decreased, but the EEOC has dramatically increased the amount of money recovered for employees alleging discrimination, according to the Equal Employment Opportunity Commission's ("EEOC") Enforcement and Litigation Statistics and Agency Financial Report for Fiscal Year (FY) 2020. The number of charges of discrimination filed continue to be at an all-time low. The EEOC's data shows that there were only 67,448 charges of discrimination filed in FY 2020, which is 5227 fewer charges of discrimination than were in FY 2019. For the last four years, the EEOC has reported a decrease in the overall number of charges of discrimination filed. In FY 2016, there were 91,503 charges of discrimination filed, which is nearly 25,000 more than FY 2020.

While this has necessarily caused a decrease in the number of charges filed in each of the ten types of discrimination tracked by the EEOC, the EEOC dramatically increased the monetary recovery for employees alleging discrimination, as well as the number of resolutions. The EEOC resolved 70,804 charges in FY 2020 and increased its merit factor resolution rate to 17.4 percent from 15.6 percent the prior year.¹ According to the EEOC's Agency Financial Report for FY 2020, the EEOC secured over $535.4 million for employees alleging discrimination in the private sector and local governments, $333.2 million of which was obtained through mediation, conciliation, and settlements, and $106 million through litigation.² The EEOC notes that this is the highest amount in 16 years. According to the Agency Financial Report for FY 2020, the EEOC successfully resolved 6,272 of the 9,036 mediations conducted.³ The EEOC launched its Mediation Pilot program in June 2020 and we expect the EEOC to place a strong emphasis on mediation in the upcoming year.

In FY 2020, the EEOC filed 93 merits lawsuits, down considerably from the 144 merits lawsuits filed in FY 2019. The agency filed 13 systemic suits whereas the year before they filed 17 systemic lawsuits.⁴ Of the $106 million recovered by the EEOC through litigation, $69.9 million were in systemic lawsuits, a considerable increase over the previous year's data showing $22.8 million recovered.

The percentage of charges for each type of discrimination is of interest. The Enforcement and Litigation Statistics for FY 2020 shows that retaliation remains the most frequently alleged claim- representing 55.8 percent of all charges filed. Disability continues to be the next most alleged category of discrimination, followed by race and sex. Of interest, the percentage of each category of discrimination decreased or remained static, except for claims of retaliation, disability, color and genetic information. Charges alleging genetic information discrimination more than doubled from 209 charges filed in FY 2019 to 440 in FY 2020.

Disability charges experienced the largest gain in percentage of all filed charges in FY 2020, which increased 2.7 percent. For FY 2020, the percentage of disability discrimination claims was 36.1 percent. Of note, the percentages of disability discrimination charges have increased every year since 2008.

The following is a breakdown of claims filed in FY 2019 and FY 2020 (some charges alleged multiple bases):

The number of LGBT-based sex discrimination charges slightly decreased in FY 2020 to 1,857 charges. We anticipate an increase in the future of LGBT-based sex discrimination charges with the U.S. Supreme Court's June 2020 decision of Bostock v. Clayton County, Georgia finding workplace discrimination because of sexual orientation or gender identity is the equivalent of discriminating on the basis of sex - which is illegal under Title VII of the Civil Rights Act of 1964. You can read our article on the Supreme Court's decision here.

What does this mean for employers? While overall charges filed have decreased, the EEOC's enforcement efforts remain robust with increases in recovery of monetary benefits for employees alleging discrimination. Retaliation remains the most common claim across the board. Employers should not only have anti-retaliation policies and procedures in place, but ensure employees and managers are properly trained to know what retaliation is and how to report and respond to retaliation complaints.

Disability charges continue to rise, and we expect that trend to continue as employers and employees navigate the pandemic and post-pandemic workplace. With employees being asked to return to the workplace after working remotely, employers can expect to deal with requests from those wanting to continue to work from home. It is critical for employers to identify when an employee's request to work remotely is a request for an accommodation and engage in the "interactive process" mandated by the American with Disabilities Act (ADA) to determine whether a reasonable accommodation may be provided without imposing an undue hardship. You can read our article on Ramping Up to Return to the Workplace in the Post Pandemic Environment. Employers should make certain that supervisors and managers are trained on the ADA compliance obligations and the interactive process regarding possible reasonable accommodations for eligible employees.

Footnotes

1. The EEOC has defined "Merit Resolutions" as charges with outcomes favorable to charging parties and/or charges with meritorious allegations. These include negotiated settlements, withdrawals with benefits, successful conciliations, and unsuccessful conciliations. https://www.eeoc.gov/statistics/definitions-terms (last visited March 31, 2021).

2. See Agency Financial Report, p. 10-11. https://www.eeoc.gov/sites/default/files/2020-11/2020-AFR.pdf (last visited March 31, 2021).

3. See Agency Financial Report, p. 23. https://www.eeoc.gov/sites/default/files/2020-11/2020-AFR.pdf (last visited March 31, 2021).

4. The EEOC defines systemic cases as "pattern or practice, policy and/or class cases where the discrimination has a broad impact on an industry, profession, company or geographic location." https://www.eeoc.gov/systemic-enforcement-eeoc (last visited March 31, 2021).

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