During the 2013 fiscal year (ended September 30, 2013), the number of charges filed with the U.S. Equal Employment Opportunity Commission was down 5.7% compared with the previous fiscal year, but the EEOC’s FY 2013 monetary recoveries of $372.1 million through administrative processes were the highest ever in any single fiscal year. The EEOC’s February 5, 2014 press release regarding its release of the FY 2013 data can be found here. The charge statistics can be found here and the overall statistics regarding the monetary recoveries can be found here. The statistics regarding the EEOC’s merits lawsuits can be found here.
The Number of Charges and Level of Recoveries
The total of 93.727 charges filed during FY 2013 was down from the 99,412 charges filed during FY 2012, but nearly ten percent above the 1997-2012 annual average of 85,373. The 2013 filing total was the fifth highest total number of annual filings since 1997. The number of filings did not exceed 90,000 during any one fiscal year prior to FY 2008, but the annual filings levels have stayed well above 90,000 since that point. The elevated filing levels since FY 2008 suggests that the recent levels are related to the economic downturn. By the same token, it might be assumed that the decline in the number of charges filed during 2013 may reflect the nascent economic recovery.
For the fifth year in a row, allegations of retaliation was the most frequently cited basis for charges of discrimination, both as a matter of number of charges (38,539) and as a percentage of all charges (41.1%). Both the number of charges and percentages represent an increase of retaliation charges since the year before.
The second most frequently cited bases for charges of discrimination was race discrimination, which was cited in 33,068 charges, representing 35.3 percent of all charges. The next most frequently cited basis was sex discrimination, including sexual harassment and pregnancy discrimination, which was cited in 27,687 charges (29.5 percent of all charges.), followed by discrimination based on disability, which was cited in 25,957 charges (27.7 percent). Compared to the 2012 fiscal year, both race and disability discrimination charge filings decreased in absolute numbers but increased as percentages of all charges.
As Evan Shenkman of the Ogletree Deakins law firm points out in his February 10, 2014 memo about the EEOC’s statistics (here), the overall percentage of “reasonable cause” findings (an initial finding in favor of the employee) dipped slightly in FY 2013 (from 3.8 percent to 3.6 percent). Charges brought under the Genetic Information Non-Discrimination Act (GINA) (8.8 percent) and sexual harassment charges (7.6 percent) proved the most likely to result in a cause finding, while race-based charges (2.8 percent) and charges brought under the Age Discrimination in Employment Act (ADEA) (2.4 percent) were the least likely to result in a cause finding.
The four states with the highest number of EEOC charges were with 9,068 charges, representing 9.7 percent of all charges filed; Florida, with 7,597 charges; California, with 6,892 charges; and Georgia, with 5,162 charges,
Through its administrative processes, the agency had monetary recoveries during the 2013 fiscal year of $372.1 million, representing an increase of $6.7 over the prior fiscal year. The monetary recoveries for FY 2013 represent the highest annual recoveries in agency history.
During fiscal year 2013, the EEOC filed 131 merits lawsuits alleging discrimination, which represents an increase of about 7% compared to fiscal year 2012. (The term “merits suits” includes direct suits and interventions alleging violations of the substantive provisions of the statutes enforced by the Commission and suits to enforce administrative settlements.) But while the number of merits suits increased in FY2013 compared to the prior fiscal year, the number of merits suits is well below historical levels. During the period 1997 through 2012, the Commission averaged 323 merits suits per fiscal year, so the number of 2013 merits lawsuit filings is nearly 60% below the historical annual average.
During 2013, the most numerous were lawsuits filed under Title VII of the Civil Rights Act of 1964 (78). The EEOC also filed its first three suits asserting GINA claims in FY2013.
During fiscal year 2013, the agency resolved 209 merits lawsuits producing monetary benefits of $38.6 million. Both figures are down from the 2012 fiscal year, when there were 283 merits suits resolutions producing $44.2 million in monetary recoveries. The monetary recoveries in fiscal 2013 through merits lawsuits was well below the 1997-2013 annual average of $86.4 million of monetary recoveries in merits lawsuits.
For employers, there are some important time line takeaways from these figures. That is, even though the overall numbers of charges filed decreased, the number of retaliation charges increased. And the overall consequences for employers hit with charges increased to record levels. These trends underscore the importance for employers of developing and maintaining employment programs to keep their operations in compliance with statutory requirements and to take steps to avoid conduct that could trigger allegations of retaliation. In addition to an effective compliance program, well-advised employers will be sure to maintain a well-designed employment practices insurance policy.
Read other items of interest from the world of directors & officers liability, with occasional commentary, at the D&O Diary, a blog by Kevin LaCroix.
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