2018 EEOC Statistics Illustrate the Agency’s Continued Emphasis on Enforcement

By Frank L. Day

When President Trump took office promising to cut regulations and create an environment that was more favorable for business, many political and legal commentators speculated that his pro-business agenda would force the Equal Employment Opportunity Commission (EEOC) to devote less time and resources to enforcement actions. Multiple publications released by the EEOC summarizing the agency’s activity during 2018 show that these predictions missed the mark.

The EEOC’s emphasis on enforcement through litigation continued in 2018. In fact, the EEOC actually filed more lawsuits in 2018 than it had in 2017, which was a banner year for the agency. During 2017, the EEOC filed 184 merits lawsuits, which are those alleging a substantive claim of unlawful discrimination. This past year the EEOC filed 200. This data confirms that the EEOC remains focused on increasing its impact through litigation.

 In addition to the lawsuits the EEOC filed during 2018, the agency also filed 29 amicus curiae briefs in appellate cases to which it was not a party. The EEOC is not capable of monitoring all cases appealed, so it has a program by which attorneys representing employees can request that the EEOC submit a “friend of the court” brief in support of their position. Thus, employers should note that the EEOC’s efforts to influence the development of employment discrimination law through litigation also occurs in the appellate context in lawsuits that the agency did not file. In short, the trend of the EEOC filing more lawsuits and continuing to aggressively pursue its mandate through litigation has actually picked up momentum.

One of the biggest stories of the year was the “Me Too” movement, and the EEOC was quick to embrace the cause. In June 2018, the agency circulated a press release to state, “EEOC Files Seven Suits Against Harassment.” A short time thereafter it announced, “EEOC Files Seven More Suits Against Harassment.” These announcements were an early indicator of the agency’s increased focus on claims alleging sexual harassment. The agency later admitted that it had timed the filing of these lawsuits for publicity to emphasize the unlawfulness of sexual harassment.

The data released by the EEOC confirms that in 2018 the agency devoted significantly more resources to combating sexual harassment than it had in prior years. In a rare move, the EEOC even published specific statistics relating to its sexual harassment enforcement efforts. This publication noted, “[t]he EEOC filed 66 lawsuits challenging workplace harassment [during 2018], 41 of which alleged sexual harassment. This [action represented a] more than 50 percent increase in suits challenging sexual harassment over FY 2017.”  The EEOC filed these lawsuits on a nationwide basis on behalf of employees who work in many different industries. 

Not surprisingly, the #MeToo movement led to an increase in the number of charges alleging sexual harassment filed with the EEOC in 2018. The number of sexual harassment charges filed in 2018 increased by 13.6 percent over the prior year. Data released by the EEOC also confirms that the agency took a more aggressive approach to its investigation of sexual harassment charges. According to an EEOC publication, “[f]or charges alleging harassment, reasonable cause findings increased by 23.6 percent to nearly 1,200 in FY 2018.” Furthermore, the EEOC successfully conciliated 498 charges alleging harassment, a 43 percent increase from the prior year. It was also noteworthy that through administrative enforcement and litigation, the agency recovered nearly $70 million for employees alleging that they were victims of sexual harassment. This recovery represents a significant increase over the $47.5 million EEOC recovered in 2017. 

The EEOC also embraced the #MeToo movement by offering new resources on its webpage, which experienced increased traffic. In fact, the number of hits on the agency’s sexual harassment website more than doubled during the past year. To provide additional information about sexual harassment, the EEOC developed two new publications. The first is for employees, and it is titled, “What to do if you believe you have been harassed at work.” The second was issued to assist employers with compliance, “Promising Practices for Preventing Harassment.”

In addition to the internet resources it offered on the subject, EEOC staff conducted over 1,000 outreach events on harassment for more than 115,000 individuals and employers. Furthermore, the agency “reconvened the Select Task Force on the Study of Harassment in the Workplace for a public meeting, ‘Transforming #MeToo into Harassment-Free Workplaces,’ to examine difficult legal issues and to share . . . strategies to prevent harassment, including app-based reporting, simple color-coded reporting, and panic buttons for hotel workers.”

The most significant points an employer can glean from the EEOC’s 2018 data is that popular sentiment can influence the agency’s enforcement priorities, but its commitment to aggressive enforcement remains unchanged. In fact, one could argue that the data shows that the agency is continuing to ramp up its enforcement efforts while also devoting more time and resources to outreach and education, which is at least in part intended to ensure that individuals who are possibly the victims of unlawful discrimination file charges.

During 2018, the EEOC received 554,000 calls and e-mails and handled over 200,000 inquiries concerning potential discrimination claims. This traffic was driven in part by the agency’s launch of a nationwide online inquiry system and appointment systems, which are now part of the EEOC’s Public Portal. This new resource resulted in a 30 percent increase in inquiries and over 40,000 intake interviews. From these figures, one can conclude that by making it easier for employees to seek assistance and to file charges, the number of inquiries will continue to increase. It is important for employers to note that while the EEOC is devoting significant resources to enforcement, it is also working to eliminate any barriers that may prevent employees from seeking its assistance, which may contribute to an increase in charges.

The significant increase in lawsuits filed by EEOC and the increasing number of charges filed by individual employees are trends that employers should not ignore. The Trump administration has not slowed the EEOC’s enforcement or outreach efforts as some expected; in fact, the data suggests that the odds of facing an EEOC charge or other action are continuing to increase for all companies. In this climate, prudent employers will update their employee handbooks and other policies while also offering appropriate training to managers and/or other employees about harassment and discrimination. Although these proactive steps cannot prevent all claims, they could make a favorable outcome more likely. Indeed, companies that devote real effort to preventing discrimination can always emphasize these good faith efforts in response to any EEOC charge, which is a helpful first step in avoiding a finding of reasonable cause.