Where Have All the Charges Gone?

By Lindsey A. White - Shawe & Rosenthal LLP

January 5, 2023

Five years after the #MeToo movement took shape, we are seeing an interesting trend in the Equal Employment Opportunity Commission (EEOC) charge data: the number of Charges of Discrimination (charges) filed since fiscal year (FY) 2016 are down — significantly. There were 30,000 fewer charges in FY 2021 than in FY 2016. While I expected to see a drop in charges correlating to the pandemic and rise in remote work, it was somewhat surprising to see the trend of declining charges actually began much earlier.

The type of discrimination alleged in the charges (as reflected by percentages of overall charges and not straight numbers of charges) is strikingly consistent over the years with a few exceptions. There is a notable uptick in retaliation charges, which represented 56% of charges in FY 2021 (up from 48% from FY 2016). ( Note, because a Charging Party may file a charge on multiple bases, these percentages do not add up to 100%.)

Charges based on sex, which includes sexual harassment, dropped from 26,934 in FY 2016 to 18,762 in FY 2021. Wait—if #MeToo was supposed to promote people speaking up about sexual harassment and violence in the workplace, why do not we not see that reflected in the EEOC charge data?

We cannot know for certain, but I have a few theories. First, we are seeing many more internal complaints of sexual harassment in the workplace. This is a very positive development because it means that employers have effective policies that are prompting employees to speak up. Internal complaints provide employers the opportunity to promptly investigate and take remedial action where appropriate before it rises to the level of filing a charge. Even if an investigation concludes a complaint was not substantiated, it allows the employer to show the employee their concerns were taken seriously and double down on preventative measures such as re-issuing handbook policies and conducting training.

Speaking of training, I am also seeing an increased focus on regular preventative employment training. (In fact, many states have mandated such training). Regular live (whether in-person or through Zoom) employment training can help reinforce appropriate workplace conduct and prompt internal complaints. Training can also remind managers of their duties to escalate complaints to HR for prompt action.

Finally, it is possible that workplace conduct is improving in the wake of #MeToo. This could be due to increased education and training, or it could be fear of “getting in trouble.” Either way, this would certainly be a refreshing outcome to come out the #MeToo movement.

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