Reading the Tea Leaves: A Look at the EEOC Charge and Litigation Statistics From Fiscal Year 2018

Every year, the EEOC publicly releases information detailing what the agency has been working on during the past fiscal year. These breakdowns, when analyzed on a year-over-year basis, shed light on “hot” areas where claims may be spiking, and can provide insight into the agency’s enforcement priorities – all key areas to watch for employers.

In April 2019, the EEOC released a detailed breakdown of the approximate 76,000 charges of workplace discrimination filed during Fiscal Year 2018 (ending September 30, 2018). For the non-number crunchers in the room, here are some key takeaways from the data:

Overall Volume

Nationwide, the EEOC received 76,418 charges, and resolved 90,558 charges (the latter figure includes charges from prior fiscal years that were resolved during the last fiscal year). The agency filed 199 lawsuits, 117 of which alleged individual instances of discrimination, 45 of which alleged discriminatory policies, and 37 of which alleged systemic discrimination. In sum, the total number of charges filed in Fiscal Year 2018 was down almost 10% from those filed in Fiscal Year 2017.

While the decrease in the number of overall charges is certainly comforting, keep in mind that the rise and fall in the volume of overall charges is cyclical and is often correlated with the strength of the economy. In recent years, we have continued to see steady low rates of unemployment, which could certainly account, at least in part, for the overall decrease in the volume of charges filed.

Location, Location, Location

As in past years, the relative hot spots for EEOC charge activity remained consistent. Texas leads the pack with 7,482 charges, followed by Florida with 6,617 charges. Georgia, Pennsylvania, and Illinois rounded out the top five states. These states are all large population centers with relatively active plaintiff’s bars. Remember, however, that all claims do not necessarily come through the EEOC. For example, California, which is the largest state by population, comes in at number six on the list, with 4,344 charge receipts. But the Golden State has a robust state statutory scheme in place, which may make the EEOC charge numbers look much lower than the overall number of workplace discrimination claims filed in the state.

#MeToo and Retaliation

It would be hard to escape the prevalence of the #MeToo movement as a societal game changer, and its effect has also been felt in terms of charges filed with the EEOC. In April 2019, the EEOC’s Acting Chair Victoria A. Lipnic underscored the impact of the #MeToo movement on the EEOC’s workload in the press release announcing this breakdown, stating “. . . 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.”

While the total volume of charges trended downward overall, the number of charges relating to sexual harassment and related retaliation have increased. In a similar vein, the EEOC also reported a total recovery of $56.6 million for alleged victims of sexual harassment in Fiscal Year 2018. These spikes are likely a direct result of widespread publicity about the #MeToo movement, which has encouraged more open discussions about these types of issues in workplaces across the country.

As with years past, claims for retaliation amounted to the largest portion of charges, 51.6%, followed closely by sexual harassment at 32.3%, disability at 32.2%, and race at 32.2%. Note that the percentages add up to more than 100%, given that many charges allege multiples bases for discrimination.

The Takeaway

Employers and counsel alike do not have a crystal ball and cannot predict when and where the next charge or lawsuit filed by an employee will come from. However, what the statistics continue to show year after year is that the political climate, social concerns and social movements, and the economy will continue to affect the volume and types of charges of discrimination employers face.

So what to do with this information? These yearly breakdowns are another reminder of the critical importance of policies, training opportunities, and investigation procedures that will serve as the front line of an employer’s defense. Conscious efforts by leadership to build a workplace culture of inclusion will continue to pay dividends as the landscape of EEOC enforcement activities changes every year.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.