Fiscal year 2018 saw the most enforcement litigation activity by the Equal Employment Opportunity Commission (EEOC) than any year in the agency’s history since it was formed as part of the Civil Rights Act of 1964. Those organizations that thought the level of EEOC enforcement activity would be slowing down under a Trump Administration may need to rethink that perspective.
For FY 2018, the EEOC filed 217 actions, 197 merit lawsuits, and 20 subpoena enforcement actions. Enforcement of Title VII of the Civil Rights Act (which prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion) accounted for 55% of the filings, a slight increase over FY 2017. The area with the second most filings involved enforcement of the Americans with Disabilities Act (ADA).
An area receiving increased attention from the EEOC was workplace harassment. The EEOC reported that it filed 66 lawsuits challenging workplace harassment, 41 of which alleged sexual harassment. This is more than a 50 percent increase in suits challenging sexual harassment from FY 2017.
The EEOC experienced a significant increase this past fiscal year in calls, emails, and online inquiries concerning potential discrimination claims and high demand for its new Respectful Workplaces Training Program as it ramps up its outreach and enforcement for 2018 to address workplace discrimination. The EEOC said it received more than 554,000 calls and emails and more than 200,000 inquiries concerning potential discrimination claims. The launch of a nationwide online inquiry and appointment system as part of the EEOC’s Public Portal resulted in a 30% increase in inquiries and over 40,000 intake interviews, according to the agency.
The EEOC said its lawsuits sought to protect a wide-range of employees across the entire country, including servers, nurses, administrative assistants, customer service staff, truck drivers, welders, and other workers at cleaners and country clubs, sports bars and airlines, in factories, health care and grocery stores. Charges filed with the EEOC alleging sexual harassment increased by more than 12% as compared to FY 2017, the agency reported. Hits on the sexual harassment page of the EEOC’s website more than doubled this past year, as many individuals and employers sought information to deal with workplace harassment.
As part of the initiative to end discrimination in the workplace, the EEOC launched a training program in October 2017 called “Respectful Workplaces.” Over 9,800 employees and supervisors in the private, public and federal sector work forces participated in Respectful Workplaces trainings this past fiscal year to learn skills related to help employees and respect and acceptable workplace conduct. An additional 13,000 employees participated in the EEOC’s anti-harassment compliance trainings.
The EEOC secured approximately $505 million and other relief for more than 67,860 victims of workplace discrimination. This includes $354 million in monetary relief for those who work in the private sector and state and local government workplaces through mediation, conciliation and other administrative enforcement. The agency also recovered $98.6 million in monetary relief for federal employees and applicants. The EEOC continued to achieve success in its conciliation of private sector charges, with 41% of conciliations successfully resolved, and 45% of systemic investigations resulting in voluntary resolutions.
The EEOC’s legal staff resolved 141 merit lawsuits, filed 199 more in FY 2018, and filed 29 amicus curiae briefs on significant legal issues in employment discrimination cases.
The EEOC recovered almost $70 million in FY 2018 for victims of sexual harassment, as compared to the recovery of $47.5 million in FY 2017. The uptick in secured damages for victims of sexual harassment is directly tied to the #MeToo movement. “I am so proud of the EEOC staff who stepped up to the heightened demand of the #MeToo movement to make clear that workplace harassment is not only unlawful, it is simply not acceptable, Acting EEOC Chair Victoria A. Lipnic stated in a recent press release. “As the agency with expertise, as the enforcer of the law, and as an educator, the EEOC has continued to lead the way to achieve the goal of reducing the level of harassment and to promote harassment-free workplaces.”
In the EEOC’s revised Strategic Enforcement Plan (SEP) for FY 2017-2021, “preventing systematic harassment,” was one of six focus areas. Based on the recent press release, it appears that the EEOC will be continuing its focus on workplace discrimination in the next fiscal year.
As the EEOC continues to identify employers violating equal employment opportunities in the workplace, here are some tips to help stay out of the spotlight:
Stay up to date on changing legislation in states.
Train HR supervisors on the federal EEO laws relevant to the state they are operating in. Educate them on the state laws as well.
Educate employees on anti-harassment practices and be sure policies are being adopted across your entire organization.
Ensure that you have data processes in place that will provide accurate data to address any EEOC enforcement actions.
Employers should review their policies on processes to ensure they do not discriminate against people with disabilities and other protected classes. They should consider reviewing the processes they have in place to defend themselves against an EEOC investigation.