Employer Lessons Learned From The EEOC's FY 2014 Data Tables

Two days after publishing its Fiscal Year 2016 Budget Justification requesting an additional $8.6 million in funds and authorization to hire more employees, the Equal Employment Opportunity Commission ("EEOC") released its comprehensive set of Fiscal Year 2014 Private Sector Data Tables providing breakdowns for the charges of workplace discrimination the agency received.

Some significant highlights of the data released are summarized below:

1. The number of charges filed actually decreased approximately 5% (about 5,000 less charges) since fiscal year 2013. The EEOC does not attribute this decrease to better workplaces, but to government shutdown periods. 
2. The monetary benefits claimants received through the EEOC's investigations dropped by $75.9 million or roughly 20%. 
3. The EEOC only found reasonable cause in favor of claimants for 3.6% of charges in 2014. In 2001, that number was nearly 10%. 
4. The EEOC filed two more lawsuits on the merits in 2014. This number, however, was down 50% from fiscal year 2011 and down 65% from fiscal year 2005 levels.
5. Monetary relief from cases litigated, including settlements, totaled $22.5 million, down from a high of $168.6 million in fiscal year 2004.  

The data also gives employers useful information about charge trends:

1. Retaliation charges filed were the highest in history. 2014 was the sixth year in a row that retaliation charges topped the charts. 
2. Discharge and discipline related charges dropped approximately 3%; however, discharge remained the most common issue amongst charges filed. 
3. Harassment-related charges were the second most common issue amongst all charges filed, with the exception of race. The number of harassment-related charges increased about 3% in 2014. For the basis of race, discriminatory terms and conditions of employment was the second most frequently cited issue, with harassment being the third.
4. The number of charges alleging discriminatory advertising doubled, in large part due to age-related claims.
5. Charges based on unlawful waivers nearly tripled, from 31 to 85.
6. Discriminatory employment testing and retirement incentive charges also saw significant increases.
7. Sexual harassment, Equal Pay Act, and GINA were the most likely charges to result in a cause finding (6% likelihood). Race and color discrimination were the least likely charges to result in a cause finding (2.2% likelihood).
8. The states with the most charges filed in fiscal year 2014 were: (1) Texas (8,035); (2) Florida (7,528); and (3) California (6,363). The states with the least charges were Montana (25); Maine (34) and Vermont (40).

The Top Ten Types of Charges Filed with the EEOC in Fiscal Year 2014 were:[1]

1. Retaliation: 42.8% (37,955)
2. Race: 35% (31,073)
3. Sex (including pregnancy and sexual harassment): 29.3% (26,027)
4. Disability: 28.6% (25,369)
5. Age: 23.2% (10,588)
6. National Origin: 10.8% (9,579)
7. Religion: 4% (3,549)
8. Color: 3.1% (2,756)
9. Equal Pay Act: 1.1% (938)
10. Genetic Information Non Discrimination Act: 0.4% (333)

Employer Takeaways

In recent years, the EEOC has focused more on systemic litigation and less on charges involving individual claims. Potentially as a result of this focus, the EEOC's recoveries obtained for alleged victims of discrimination have declined. The EEOC is most likely feeling pressure to increase these numbers in fiscal year 2015. Employers should be on the alert for aggressive investigators hungry to bring back monetary recoveries and increased statistics for the agency.
Employers must remain vigilant about retaliation and harassment training, emphasize to employees involved in workplace investigations that retaliation will not be tolerated, and make sure all employees are aware of the complaint procedure available in the company's equal employment opportunity, non-discrimination, anti-harassment and non-retaliation policies.
As a result of the significant rise in charges related to job postings, testing, waivers and retirement incentives, employers should make sure that their human resources professionals and legal advisors have vetted these documents to exclude any potentially problematic or unlawful language.  

If you would like to have an attorney review your documents or provide training for your staff, please contact Anne-Marie Vercruysse Welch at (248) 988-1810 | awelch@clarkhill.com or another member of Clark Hill's Labor and Employment group.

[1] These percentages add up to more than 100 because some charges allege multiple bases.