EEOC Charges Reach Record Low

By Lehr Middlebrooks Vreeland & Thompson, P.C.

February 20, 2020

According to information recently released by the EEOC, a total of 72,675 charges were filed during Fiscal Year 2019 (ending September 30). This is the fewest ever since the EEOC began releasing charge statistics in 1997. Nine years ago, the highest number of charges were filed: 99,922.  
 
Although the number of charges continued to decline, there are noteworthy trends for employers to consider. Every year since FY 1997, the percent of total charges alleging retaliation has increased, from 22.6% for FY 1997 to 53.8% for FY 2019.

The other noteworthy trend is the continuing increase in ADA charges, which now comprise 33.4% of all charges. This is the 11th consecutive year in which those charges have increased. For FY 2008, 20.4% of all charges alleged ADA violations. We believe this trend is closely connected to dismal U.S. public health trends and that ADA claims and charges will continue to increase.
 
There is great focus on pay equity, but that is not reflected in Equal Pay Act charges filed with the EEOC. 1.5% of all charges alleged Equal Pay Act violations, compared to 1.4% during 2018. We think this number remains low because pay discrimination claims are often based on an alleged violation of Title VII and not the Equal Pay Act.
 
After an increase in the number of sexual harassment charges in FY 2018 (7,609 FY 2018 from 6,096 FY 2017), the total number of sexual harassment charges dropped slightly for FY 2019 to 7,514. Racial harassment charges increased slightly during FY 2019, to 8,682. Of those, the EEOC concluded 73.9% of the time that the charge was meritless and found "reasonable cause" only 2.2% of the time. The remaining racial harassment charges were settled or withdrawn. This is quite a contrast to sexual harassment, where "no cause" determinations were found 54.6% of the time and "cause" findings occurred 4.5% of the time. We believe the other 40% or so sexual harassment charges were not identified as "cause" or "no cause" because they were withdrawn with benefits or otherwise settled.
 
Pregnancy discrimination charges remained steady compared to FY 2018, but at 2,753 charges, well below the high of 4,029 filed during FY 2010. 57.8% of pregnancy discrimination charges resulted in "no cause" findings and only 4.6% resulted in "cause" determinations. As with charges regarding sexual harassment, we think a higher percentage of pregnancy discrimination charges were resolved at the EEOC level compared to charges alleging race, sex, age, or disability discrimination.
 
So, what do these trends mean for employers:
 
 1. Retaliation charges and claims under all statutes will only continue to increase.
 
2. As our country continues to have problems with obesity, drug abuse and medical conditions associated with both, expect an increase in ADA charges as employers grapple with reasonable accommodation and what is considered a disability.
 
3. Perhaps the number of sexual harassment charges in the #MeToo timeframe will now decrease. Employers who address sexual harassment overall in an aggressive and comprehensive way no doubt contributed to a reduction in the number of charges filed.