On January 24, 2020, the United States Equal Employment Opportunity Commission (“EEOC”) released its Enforcement and Litigation Data for Fiscal Year (“FY”) 2019, which began October 1, 2018, and ended September 30, 2019. The data reflects that the EEOC received 72,675 charges of workplace discrimination in FY 2019, with retaliation remaining the most frequently filed charge with the agency, followed by disability, race, and sex. The EEOC filed 157 total suits and 144 merit suits, including 87 with Title VII Claims, 55 with ADA claims, 7 with ADEA Claims, 7 with EPA claims, and 12 with claims under multiple statutes.

Downward Trend In Overall Filed Charges

The EEOC’s report outlines agency charges by bases alleged as follows:

Retaliation:                   39,110 (53.8 percent of all charges filed)
Disability:                      24,238 (33.4 %)
Race:                             23,976 (33.0 %)
Sex:                               23,532 (32.4 %)
Age:                               15,573 (21.4 %)
National Origin:               7,009 (9.6 %)
Color:                               3,415 (4.7 %)
Religion:                           2,725 (3.7 %)
Equal Pay Act:                   1,117 (1.5 %)
Genetic Information:          209 (0.3 %)

The above percentages add up to more than 100% as some charges allege multiple bases.

Of note, the overall total number of charges filed against employers decreased by about 5%. Notably, this trend began in FY 2018. The downward trend accounts for nearly all categories of discrimination with only modest increases in charges filed under claims of Color and the Equal Pay Act. The charge category that decreased the most was age by 1,338 claims, representing an approximately 8% decrease.

The #MeToo movement’s impact on sexual harassment charges may be halting. Despite the upward trend of sexual harassment claims in the United States in FY 2018, FY 2019 showed a 1.2% decrease in sexual harassment claims compared to FY 2018.

States With Highest Charges Filed

The seven locations with the highest volume of charges filed have remained unchanged for the last ten (10) years. In particular, Texas, Florida, California, Georgia, Pennsylvania, Illinois, and North Carolina have ranked in the top seven for charges filed from 2009-2019. While the population has an impact on the volume of charges filed and California remains the most populous state, Texas has remained the state with the highest volume of charges filed since 2009.

Deeper Review on North Carolina Charges

Fortunately, North Carolina only saw increases in two of the eleven charge areas: Genetic Information Nondiscrimination Act (“GINA”) claims and religion claims. Religion claims had a very modest increase of .7%, while GINA claims increased by 50%. In other charge categories, the largest decrease in charges filed was for national origin claims – decreasing from 280 to 216 – an overall 22% decrease. The next largest decline was for charges filed based on age. Disability claims saw a modest decrease of 1% in FY 2019, followed by a decline in retaliation claims of 1.7% in FY 2019.

With the North Carolina increases noted, it bears a review of the EEOC’s enforcement focuses. Religious charges with the EEOC involve unfavorable employer treatment of a person, whether applicant or employee, based on their religious beliefs. The person’s individual beliefs may be associated with organized religions or other sincerely held religious, ethical, or moral beliefs. Further, the EEOC accepts religion charges involving discriminatory treatment of individuals as a result of their marriage or association with and individual or a particular religion.

GINA charges with the EEOC are enforced according to Title II of GINA. GINA applies to all employers subject to Title VII of the Civil Rights Act of 1964 and adopts Title VII’s enforcement schemes except that disparate claims are not permitted. GINA claims are focused on genetic discrimination in all aspects of employment, which includes hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment.

Pursuant to Title II of GINA, it is illegal to discriminate in employment decisions because of genetic information. Information such as an individual’s genetic tests, the genetic tests of an individual’s family members, information about the manifestation of a disease or disorder in an individual’s family members (e.g., family medical history).

Genetic information also includes an individual’s request for or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or their family member. This may even include the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual.

Complying with GINA may require increased attention to your regular business practices. Employee health information needs to be clearly identified as confidential and participation in select health and wellness programs need to include appropriate disclaimers. Employers must remain aware of the EEOC’s enforcement activity in this area and train staff accordingly not to unknowingly violate company obligations under this Act.

Employer Realities Given FY 2019 Enforcement Activity

The statistics matter. While overall charges filed have decreased, the EEOC’s enforcement efforts remain robust with positive results for the agency and overall increases in resolutions. 

Employers are presently navigating workplaces and society with a keen eye and awareness of advances in the #MeToo movement and expectations for employers. The statistics and society’s current culture demand employers implement and act before circumstances giving rise to charges occur. 

Set the culture you desire through strong leadership and accountability. Implement sound human resources practices, including regular review and updates to written policies. Train staff and leadership on key policies within your organization to uphold company values at all levels. Protect your culture and, ultimately, protect your company’s bottom line.

Gwendolyn Lewis

Gwendolyn W. Lewis practices in the area of general civil litigation with a focus on employment litigation and counsel, healthcare litigation and counsel, and business litigation. Well-versed in a full range of counseling and litigation issues for employers, she passionately advances the interests of her clients before state and federal courts and administrative agencies.

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