Wednesday, January 31, 2018

EEOC Releases 2017 Fiscal Year Enforcement Statistics

Last week, the EEOC released its annual enforcement statistics for the fiscal year that ended on September 30, 2017.  As I explained earlier this month in my recent presentation to the Human Resources Council of South Central Ohio, there is unlikely to be any radical changes at the EEOC in the near future because of budget cuts and vacancies which still remain in key positions, such as Chair, Commissioners and the General Counsel.   Nonetheless, the EEOC reported that it had reduced its extensive backlog of open charges to the lowest level in 10 years.  Retaliation remains the most common form of allegation made in Charges of Discrimination, being asserted in almost half of all charges filed.  This is followed by race discrimination in over a third of Charges filed, and then by disability and sex discrimination and/or harassment in approximately 30% of filed Charges.  Age discrimination was asserted in only 22% of Charges and the remaining issues were only in the single digits.   (Obviously, Charges may contain more than one type of allegation).   The EEOC more than doubled the number of substantive lawsuits it filed last fiscal year, but dismissed over 70% of Charges for lacking merit – the highest percentage since at least 1997.

The EEOC reported that 84,254 charges were filed, and 99,109 charges were resolved. Almost 2400 of Title VII Charges had been filed in Ohio and the proportion of the types of Charges filed in Ohio was consistent with the national trend: retaliation, followed by race and then sex discrimination. There were approximately 200 fewer Title VII  Charges filed in Ohio in the last fiscal year than in the prior fiscal year.

As for the resolution of Charges, 6.4% were resolved through settlement and 5.4% were withdrawn by the Charging Party (without a formal settlement) with benefits.  Fifteen percent were administratively closed (which likely means that the Charging Party could not be located or had stopped returning calls). Over 70% of Charges were dismissed for lacking probable cause (i.e., lacked merit).   While this is the highest percentage of no-merit dismissals since at least 1997, it is not a substantial increase over recent years.  Only 2.9% of Charges (approximately 2900 of the Charges) were found after an investigation to assert probable cause of discrimination.  Again, while this is the lowest percentage since at least 1997 and is substantially lower than in some past years, it is not a substantial decrease over the prior three years.   Slightly more than half of these Charges were successfully conciliated prior to litigation.  The EEOC’s resolution of Charges in the last fiscal year (prior to litigation) resulted in the recovery of $355.6M for Charging Parties, which is consistent with recoveries in five of the last six years.

The EEOC also reported that it had filed 184 substantive lawsuits, including 124 individual suits and 30 suits involving multiple victims or discriminatory policies and 30 systemic discrimination cases.  This was a significantly higher number of enforcement lawsuits commenced than since 2011, when 261 lawsuits were commenced. In contrast, only 86 lawsuits had been commenced in fiscal year 2016.  By the end of its last fiscal year, it had 242 cases on its active docket and claimed a successful outcome in 90.8 percent. It recovered $42.4M on behalf of Charging Parties through litigation, which is less than the prior two fiscal years, but almost twice as much as in 2014.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.