EEOC Charge Filings Fewest in 13 Years

By Lehr Middlebrooks Vreeland & Thompson, P.C.

April 26, 2019

The EEOC just released its charge filing statistics for Fiscal Year 2018 (year ending September 30, 2018). A total of 76,418 charges were filed, compared to 84,254 charges during FY 2017 and 91,503 charges during FY 2016. FY 2018 was the greatest decline in charge filings in the 21 years that the EEOC has released these statistics.

The number of charges containing allegations of retaliation increased for the twenty-first consecutive year to 51.6%, from 48.6% for FY 2017. During FY 1997, the first year the EEOC released these statistics, retaliation claims were only in 22.6% of all charge filings. (Remember that a charging party can allege multiple legal violations in a single charge and that retaliation charges, in particular, are likely to be accompanied by allegations of other discrimination or harassment).

The number of charges containing ADA claims increased for the tenth consecutive year to 32.2%, compared to 31.9% for FY 2017. In FY 2008, ADA claims were filed in only 20.4% of charges.

As anticipated, sexual harassment charge filings increased during 2018 to 7,609, from 6,696 during FY 2017. It is noteworthy that 15.9% of all sexual harassment charges were filed by men.

70.6% of all charges resulted in “no cause” determinations, an increase from 70.2% during FY 2017. Only 3.5% of all charges resulted in “reasonable cause” findings, increasing from 2.9% during 2017. 16.1% of all charges ended with “administrative closures.” This includes charging parties who could not be located or who were uncooperative. 7.4% of all charges were settled and 5.6% of all charges were withdrawn with benefits, which means that the charging party received the remedy he or she sought.

So, what is the take away from these statistics?

1. Undoubtedly, when the job market is strong, charge filings decline, as the majority of all discrimination charges are alleged subsequent to a termination decision, more so than any other employer action.

2. Statistically, even the EEOC acknowledges that at least seven out of ten discrimination charges lack support to believe that anything unlawful occurred. Thus, very few charges result in a situation where the EEOC believes that discrimination occurred and which the EEOC then considers for litigation. Only 13% of all charges resulted in some sort of settlement or resolution favorable to the charging party.

3. Retaliation is the claim of our times. We believe this trend will continue. This is to not only for statutes, which the EEOC is responsible for enforcing, but also under other employment laws, including the Fair Labor Standards Act, the Occupational Safety and Health Act and the National Labor Relations Act.

4. Retaliation claims are among the easiest to allege and to get past summary judgement. In essence, an individual alleges that he or she engaged in protected activity and then something bad happened to them. When employers consider an adverse action toward the employee, the number one question to ask is did the employee recently engage in any protected activity which may arguably form the basis of a retaliation claim? If the answer is yes, the employer may have a sound basis for proceeding with termination, but just be sure it is not a “close call.” If at all possible, connect the reason for the adverse action to employee attitude, attendance, performance or behavior issues which occurred prior to the protected activity. We will also see an increase in retaliation claims regarding employee medical issues. This includes employee requests and use of Family Medical Leave and Workers’ Compensation claims.